Madhya Pradesh High Court
Govind Singh Mogiya vs Rakesh Kumar on 24 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:15488
1 SA-340-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 24th OF JULY, 2025
SECOND APPEAL No. 340 of 2016
GOVIND SINGH MOGIYA
Versus
RAKESH KUMAR
Appearance:
Shri Rohit Bansal, Advocate for appellant.
Shri Rajiv Jain, Advocate for respondent.
ORDER
I.A. No.408/2018 is an application under Order 22 Rule 10, CPC,
thereby informing the death of respondent Rakesh Kumar. This application
was filed on 22/01/2018. It is mentioned in the application that Rakesh
Kumar has already expired on 22/08/2017.
2. Thereafter, I.A. No.3434/2018 was filed on 24/07/2018 under Order
22 Rules 4,11 of CPC for substitution of legal representatives of Rakesh
Kumar.
3. I.A. No.3435/2018 has been filed under Order 22 Rule 9, CPC read
with S.5 of the Limitation Act for condonation of delay in filing an
application for setting aside abatement, as well as, for setting aside
abatement. This application reads as under:-
"APPLICATION UNDER ORDER 22 RULE 9 C.P.C. AND
SECTION 5 OF THE LIMITATION ACT
May it please this Hon'ble Court
The humble appellant most humbly and respectfully submits the
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2 SA-340-2016
application as under :-
1. That, as has been informed by the counsel for respondent, in
the aforesaid case during pendency of instant appeal, the
respondent-Rakesh Kumar has died on 22.8.2017 leaving behind
him the certain legal representatives regarding which application is
being filed separately.
2. That, right to sue survives to the proposed legal
representatives therefore they deserve to be substituted in place of
respondent-Rakesh Kumar.
3. That, by moving the application dtd. 22.1.2018, the counsel
for respondent has informed to the court about death of
respondent-Rakesh Kumar. This application was firstly considered
on 10.7.2018, thereupon this Hon'ble Court granted two weeks'
time to move the application.
4. That, thereafter upon intimation, the appellant contacted to the
local counsel who from his record file of execution proceeding,
gave details of legal representatives of respondent, which was
further intimated to the counsel at Gwalior, on the basis of which
application has been prepared.
5. That, in the aforesaid circumstances, the delay has occurred in
filing of the application for substitution of legal heirs, which being
based on bonafides of the appellant, abatement deserves to be set
aside.
6. That, however from the application dtd. 22.1.2018 it is clear
that the legal heirs of respondent have already been substituted
before executing court, therefore, there is no abatement in the
appeal.
It is, therefore, most humbly prayed that the application may
kindly be allowed and by condoning the delay in moving the
application for substitution of legal heirs, the abatement may
kindly be set aside and the proposed legal representatives may
kindly be substituted in place of deceased respondent-Rakesh
Kumar in the interest of justice.
Place : Gwalior Sd/-
Date : 24/07/2018 (D.D.Bansal)
Advocate for Appellant"
4. From paragraph 3 of this application, it is clear that counsel for
appellant had received the information about death of respondent Rakesh
Kumar when he received I.A. No.408/2018 on 22/1/2018. Thereafter the
case was listed for the first time on 10/7/2018 and, accordingly, this Court
granted two weeks' time to move the application. Thereafter, the applicant
contacted the local counsel, who from his record of execution proceedings,
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3 SA-340-2016
gave details of legal representatives of respondent, which were intimated to
counsel at Gwalior and on the basis of it, the application was prepared and
has been filed.
5. In view of the specific stand taken by appellant in paragraphs 3 and
4 of the application, counsel for appellant was directed to address this Court
as to whether period of limitation would start from the date of death of party
or it would start from the date when the case is taken-up. It was fairly
conceded by counsel for appellant that period of limitation would start from
the date of death of party. Thereafter, counsel for appellant was directed to
explain the meaning of stand taken by appellant that after filing of I.A.
No.408/18, the case was listed for the first time on 10/7/2018. Counsel for
appellant fairly conceded that listing of case is not important and once I.A.
No.408/2018 was filed on 22/1/2018, then counsel for appellant could have
informed the respondent for filing application under Order 22 Rule 4, CPC,
but no action was taken by counsel for appellant. However, counsel for
appellant is also correct in submitting that the duty to inform about the death
of party is of appellant and was not of counsel for appellant.
6. Be that whatever it may be.
7. Paragraph 4 of this application is of utmost importance. After two
weeks' time was granted by this Court, it appears that counsel for appellant
contacted the local counsel who verified from the record of execution
proceedings and gave details of legal representatives of respondent. Thus, it
is clear that legal representatives of respondent/decree-holder were already
brought on record in the execution proceedings, but even then
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4 SA-340-2016
appellant/judgment-debtor did not take any action for substitution of legal
representatives of respondent/decree-holder. Thus, it is clear that although
appellant was aware of death of respondent, but still did not take any action
for substitution of his legal representatives.
8. Accordingly, this Court is of considered opinion that no sufficient
cause has been shown to condone the delay in filing the application for
setting aside abatement. It is true that consequences of dismissal of
application for condonation of delay would be harsh, but law would come to
rescue of those persons who are vigilant and are not sleeping over their
rights. If a person is sleeping, then he should continue to sleep and in the
name of sympathy, this Court cannot take away valuable right which has
accrued in favour of decree-holder. Accordingly, application filed under
section 5 of the Limitation Act is, hereby, rejected.
9. Since this Court has declined to condone the delay in filing the
application for setting aside abatement, therefore, I.A. No. 3435/2018 filed
under Order 22 Rule 9, CPC is dismissed and the appeal against sole
respondent Rakesh Kumar is dismissed as abated .
10. As a consequence thereof, I.A. No.3434/2018 is also hereby
dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
