SC: O.41, R.4&33 CPC can’t be used if decree confirmed as appeal abated

On 26thApril 2019, the Hon’ble Supreme Court, in the matter of Goli Vijaylakshmi & Ors. v. Yendru Sathiraju(Dead) By Lrs. & Ors., observed that once the appeal stands abated against one of the appellants, then decree which stands confirmed qua such appellant cannot indirectly be reopened to challenge at the behest of persons claiming through him by relying on provisions of Order 41 R 4 & 33 CPC.

The Hon’ble Supreme Court observed that;

The primary role of the Court is to adjudicate the dispute between the parties and to advance substantial justice. (Para 16)

Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed within the strict parameters of law. (Para 16)

Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is by operation of law but once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek for the setting aside of an abatement. (Para 16)

Once the appeal stands abated against one of the appellants, then decree which stands confirmed qua such appellant cannot indirectly be reopened to challenge at the behest of persons claiming through him by relying on provisions of Order 41 R 4 & 33 CPC. (This inference has been drawn on the basis of Para 23)

Copy of judgment:Judgement_26-Apr-2019

-Tushar Kaushik

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