1981 INSC 0405
                                                   State of Gujarat

                                                           Vs

                                          Sayed Mohd. Baquir El Edross

                                          Civil Appeal No. 353 of 1969

                                    (A.D. Koshal,V.B. Eradi, R.B. Misra JJ)

                                                      01.09.1981

                                                        ORDER

1. The sole respondent in this appeal died on December 10, 1978. He was also arraigned as an
appellant in the connected appeal (Civil Appeal No. 2132 of 1977) in which and application was
made on February 20, 1979 stating the factum and the date of the demise. A copy of that application
was delivered on the date last-mentioned to the clerk of learned counsel for the appellant State, who,
however, took no step to move the Court for having the legal representatives of the deceased
respondent brought on the record in the present appeal till August 29, 1979 when an application was
made for that purpose, but without being accompanied by any affidavit containing averments as to
why the inordinate delay in filing the application should be condoned. An affidavit of the type just
mentioned was filed in Court on March 4, 1980.

2. It is common ground between the parties that on the death of the sole respondent to the appeal the
right to sue survived to his legal representatives. No application having been made within 90 days of
the death, the appeal abated on March 11, 1979 and an application for having the abatement set
aside could have been made within the period of 60 days following that date (Article 121 of the
Limitation Act). The application actually made in that behalf was thus time-barred by more than
three months and a half. Mr. Phadke, learned counsel for the appellant does not dispute this
proposition. He urges, however, that the delay in making the application last mentioned should be
condoned and the abatement of the appeal set aside. No sufficient cause, however, for the
condonation of the delay is made out from any material on the record. As pointed out earlier, the
clerk of the learned counsel for the appellant was served with a copy of the application dated
February 23, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the
failure of that counsel right from February 20, 1979 to August 29, 1979 to move the Court till
August 29, 1979 either for having the legal representative of the deceased brought on the record or
for having the abatement set aside after it had taken place. His knowledge of the death of the
respondent must be attributed to the appellant State also and his negligence in not moving the Court
in time must be deemed to be that of the appellant.

3. Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits
and that the same should be regarded as a very good reason for the condonation of the delay. The
contention is wholly without substance. The abatement stands in the way of the appeal being heard
on merits which cannot, therefore, be looked into.

4. No grounds for the condonation of the delay having been made out we refuse to set aside the
abatement. The appeal is accordingly dismissed.
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