Order XXII Rule 4 CPC | No Separate Prayer To Set Aside Abatement Needed If Application To Substitute Legal Heirs Is Filed: Supreme Court

The Supreme Court held that if an appeal abates due to the failure to substitute legal heirs, filing a substitution application under Order XXII Rule 4 CPC eliminates the need for a separate application to set aside the abatement.

“When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice.”, the court observed.

A bench comprising Justices Dipankar Datta and P.K. Mishra heard the case, where the High Court had recalled the restoration of the second appeal, stating that it could not have been restored without an application to set aside the abatement.

The High Court declined to consider an application by the legal representatives (LRs) notifying the Applicant's demise and providing heirs' details for substitution, insisting that a separate application was necessary to set aside the abatement.

Setting aside the High Court's decision, the judgment authored by Justice Datta observed that a justice-oriented approach ought to be adopted, where even a prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement.

Reference was drawn from the case of Mithailal Dalsangar Singh v. Annabai Devram Kini (2003) 10 SCC 691, where the Court observed that “a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement.”

“A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied.” the Court added.

“Although no application praying for setting aside of abatement was ever made by the appellants before the High Court, but as held in Mithailal (supra), prayer for setting aside of abatement can be read in a prayer for substitution. Accordingly, the abatement of the second appeal can and ought to be set aside for ends of justice.”, the court held.

Accordingly, the appeal was allowed.

Also from the judgment - Order XXII Rule 4 CPC | Supreme Court Explains Correct Procedure To File Applications To Substitute Legal Heirs, Set Aside Abatement & Condone Delay

Case Title: OM PRAKASH GUPTA ALIAS LALLOOWA (NOW DECEASED) & ORS. VERSUS SATISH CHANDRA (NOW DECEASED) & Connected Matter

Citation : 2025 LiveLaw (SC) 194
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Appearance:

For Petitioner(s) Mr. Thomas P Joseph, Sr. Adv. Mr. Shekhar Devasa, Sr. Adv. Mr. A Velan, AOR Ms. Navpreet Kaur, Adv. Mr. Rudraksh Gupta, Adv.

For Respondent(s) Mr. Raghenth Basant, Sr. Adv. Mr. Nishant Anand, Adv. Mrs. Gunjan Bansal Anand, Adv. Mr. Anushasit Arya, Adv. Ms. Hima Bhardwaj, Adv. Mr. Shakib, Adv. Mr. Sandeep Sury, Adv. Mr. Abhigya Kushwah, AOR Mrs. Sunita Singh, Adv.