Gauhati High Court
Page No.# 1/6 vs On Death Of Lt. Prabhat Mahanta His Legal ... on 14 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010041732018
2025:GAU-AS:1555
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/862/2018
RITU BARUAH
S/O- BENU BARUAH, PROPRIETOR OF SEVEN SISTER BEATY CLINIC,
PRAN BHAWAN, SANKARPUR, HENGRABARI ROAD, DISPUR, GHY-6, DIST-
KAMRUP(M), ASSAM
VERSUS
ON DEATH OF LT. PRABHAT MAHANTA HIS LEGAL HEIRS, SMTI.
MONJULA MAHANTA AND 6 ORS
W/O- LT PRABHAT MAHANTA, R/O- PRAN BHAWAN, SANKARPUR,
HENGRABARI ROAD, DISPUR, GHY-6, DIST- KAMRUP (M), ASSAM
2:ANITA MAHANTA
W/O- LT NRIPEN MAHANTO (1ST S/O- LT PRABHAT MAHANTA)
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
3:HEMASHREE MAHANTA
D/O- LT NRIPEN MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
Page No.# 2/6
4:DIPAK MAHANTA
S/O- LT PRABHAT MAHANTA
(2ND SON)
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
5:ALAKA MAHANTA
W/O- SRI DIPAK MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
6:RITA PEGU
D/O- LT PRABHAT MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
7:PRITI MAHANTA KALITA
D/O- LT PRABHAT MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. U SAIKIA,
Advocate for the Respondent : MR. F AHMED, MR. D SARMA
Page No.# 3/6
Linked Case : I.A.(Civil)/860/2018
RITU BARUAH
S/O- BENU BARUAH
PROPRIETOR OF SEVEN SISTER BEATY CLINIC
PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP(M)
ASSAM
VERSUS
ON DEATH OF LT. PRABHAT MAHANTA HIS LEGAL HEIRS
SMTI. MONJULA MAHANTA AND 6 ORS
W/O- LT PRABHAT MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
2:ANITA MAHANTA
W/O- LT NRIPEN MAHANTO (1ST S/O- LT PRABHAT MAHANTA)
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
3:HEMASHREE MAHANTA
D/O- LT NRIPEN MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
Page No.# 4/6
4:DIPAK MAHANTA
S/O- LT PRABHAT MAHANTA
(2ND SON)
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
5:ALAKA MAHANTA
W/O- SRI DIPAK MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
6:RITA PEGU
D/O- LT PRABHAT MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
7:PRITI MAHANTA KALITA
D/O- LT PRABHAT MAHANTA
R/O- PRAN BHAWAN
SANKARPUR
HENGRABARI ROAD
DISPUR
GHY-6
DIST- KAMRUP (M)
ASSAM
------------
For the Applicant(s) : Ms. P. Bhagat, Advocate
For the Respondent(s) : None appears
Page No.# 5/6
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 14.02.2025
Ms. P. Bhagat, the learned counsel appears on behalf of the applicant.
2. Both these applications are taken up together for consideration. I.A.
(Civil)/862/2018, is an application filed under Order XXII Rule 3 of the
Code of Civil Procedure, 1908 (for short, "the Code") for substitution of
the legal representatives of the sole respondent who had expired and I.A.
(Civil)/860/2018, is an application filed for condonation of delay.
3. It is relevant to take note of that from the applications so filed being
I.A.(Civil) No. 862/2018, that the sole respondent expired on 17.11.2017.
For the purpose of filing an application for substitution of the legal heir, it
is required that the said application has to be filed within the period of 90
(Ninety) days. If the said application is not filed within the period of 90
(Ninety) days a prayer for setting aside abatement should be made under
Order XXII Rule 9 of the Code within 60 (sixty) days therefrom.
4. Taking into account that the instant applications have been filed on
05.03.2018 which is within 150 (One Hundred Fifty) days from the date
of death of the sole respondent i.e. on 17.11.2017, it is the opinion of
this Court that the application for condonation of delay was not required.
Accordingly, the application being I.A.(Civil)/860/2018 is taken as an
application under Order XXII Rule 9 of the Code.
5. In a recent judgment of the Supreme Court in the case of Om
Prakash Gupta @ Lalloowa (Now Deceased) & Ors. Vs. Satish Chandra
(Now Deceased) reported in (2025) SCC OnLine SC 291, the Supreme
Page No.# 6/6
Court had categorically observed that the total time for filing an
application for substitution and for setting aside an abatement as
outlined in Articles 120 and 121 of the Limitation Act, 1963 is 150
(90+60) days. The question of condonation of delay through an
application under Section 5 of the Limitation Act, 1963 arises only after
this period and not on the 91st day when the suit/appeal abates.
6. This Court, upon taking into account the contents of the
applications, is of the opinion that the right to proceed against the legal
representatives of the sole respondent who had expired continues, taking
into account that there is a judgment and decree passed against the
petitioner. Accordingly, the legal representatives of Shri Prabhat Mahanta,
whose names have been mentioned in paragraph No. 3 are substituted
against the name of the sole respondent as respondent Nos. 1A, 1B, 1C,
1D, 1E, 1F and 1G.
7. The learned counsel appearing on behalf of the applicant is directed
to file a fresh memo of parties before the Registry of this Court within 7
(seven) days from today and the Registry of this Court on the basis of
the instant order as well as the memo of parties shall make necessary
correction in the cause title as well as update the same in the CIS.
8. With the above observations and directions, both the Interlocutory
Applications being I.A. (Civil) No. 860/2018 and I.A.(Civil)/862/2018
stands disposed of.
JUDGE
Comparing Assistant
