This interlocutory order allows an interim application to bring the legal heirs of a deceased respondent on record. The High Court condones the delay in filing and sets aside the abatement of the appeal under Order XXII of the CPC.
Application allowed to bring legal heirs on record; delay condoned; abatement set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
04-IA-630-23-IN-FA-1303-16.odt
1 / 3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.630 OF 2023
IN
FIRST APPEAL NO.1303 OF 2016
Surendra Govind Nemivant
.... Applicant
versus
Sharmishta R. Deshpande & Ors.
.... Respondents
Mr. Atharva A. Dandekar a/w Padmini Ainapure i/b. Akshata Naik, Advocate for Applicant.Mr. Ketan Parekh, Advocate for Respondents.CORAM: SARANG V. KOTWAL, J.
DATE: 23rd JANUARY, 2023
P.C. :
1. Leave to amend. Amendment to be carried out
forthwith to correct the title of this application.
2. In the First Appeal No.1303 of 2016 Smt. Sharmishta
MANUSHREE V NESARIKAR
Digitally signed by MANUSHREE V NESARIKAR Date: 2023.01.24 14:59:36 +0530
R. Deshpande was the First Respondent. The application
mentions that she died on 25/03/2021 leaving behind two legal
heirs namely Ramesh Dattatray Deshpande who was her
Nesarikar
2 / 3 04-IA-630-23-IN-FA-1303-16.odt
husband and Abhijit Ramesh Deshpande who was her son.
Learned counsel appearing for the Respondent No.2 has no
objection if these two legal heirs are brought on record in the
main Appeal in place of the Respondent No.1.
3. Considering these submissions of both learned counsel,
the application is allowed for bringing the legal heirs of the
Respondent No.1 on record. Both these legal heirs are permitted
to be brought on record in place of the Original Respondent
No.1 Smt. Sharmishta R. Deshpande
4. Learned counsel further submitted that since the
Appeal stood abated against the Respondent No.1 by virtue of
Rule 4 Sub-Rule 3 of Order XXII of Code of Civil Procedure, the
abatement needs be set aside as the Appellant was not aware of
the death of the Original Respondent No.1. He also prays for
condonation of delay in preferring the present application.
Learned counsel for the Respondent No.1 fairly states that he
has no objection if both these prayers are granted. Therefore,
3 / 3 04-IA-630-23-IN-FA-1303-16.odt
the delay in filing the application for bringing the legal heirs of
the Respondent No.1 on record, is condoned. The abatement of
the Appeal against the Respondent No.1 under the provisions of
Order XXII Rule 4 (Sub-Rule 3) of CPC is set aside, based on the
provisions of Order XXII Rule 5.
5. The application is disposed of.
6. The necessary consequential amendment be carried out
in the original Appeal proceedings.
(SARANG V. KOTWAL, J.)
2 issues framed by the court
Whether application for abatement of suit on death of party should be allowed and condonation of delay granted.
Whether legal heirs of deceased respondent can be brought on record in place of original respondent.
2 provisions across 1 enactments
Surendra Govind Neminant
Sharmishta R. Deshpande
Ramesh Dattatray Deshpande
Abhijit Ramesh Deshpande
SARANG V. KOTWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court