High Court of Karnataka upholds automatic dismissal under Section 100 CPC when no substitution follows the death of the only respondent
Summary
| Category | Data |
|---|---|
| Case Name | RSA/19/2014 of DODDAMARIYAPPA Vs NAGAIAH |
| CNR | KAHC010501412014 |
| Date of Registration | 02-01-2014 |
| Decision Date | 02-06-2022 |
| Disposal Nature | Dismissed as abated |
| Judgment Author | Hon’ble Mr. Justice Ravi V. Hosmani |
| Court | High Court of Karnataka |
| Bench | Single judge |
| Type of Law | Civil procedure |
| Questions of Law | Whether a second appeal abates by law if no steps are taken to substitute a deceased sole respondent within the prescribed time? |
| Ratio Decidendi | The appeal abates mandatorily when the sole respondent dies and no application for substitution or representation is filed within the statutory period. In the absence of any counsel engaged for the appellants and no steps to replace the deceased respondent, the court must dismiss the appeal as abated. |
| Facts as Summarised by the Court | The appellants’ counsel filed a memo to retire and no fresh counsel was engaged. The sole respondent died on 25-12-2021, and a memo to that effect was taken on record. Since no application for substitution was filed within time, the appeal was dismissed as abated. |
What’s New / What Lawyers Should Note
- Failure to substitute a deceased sole respondent within the prescribed time leads to mandatory abatement and dismissal of a second appeal.
- Retirement of a counsel without arranging for alternate representation can result in abatement if no one appears for the party.
Summary of Legal Reasoning
- The appellants’ counsel filed a memo seeking retirement and no other counsel was engaged.
- A memo reporting the death of the sole respondent was filed and taken on record.
- No steps were taken within the prescribed period to substitute or represent the deceased respondent.
- Applying the procedural rule on abatement, the appeal was dismissed as abated.
Factual Background
The appellants filed Regular Second Appeal No. 19/2014 under Section 100 CPC against a decree confirmed on 07-08-2013. During the appeal, the appellants’ counsel sought to retire and was permitted to do so, but no new counsel was appointed. The sole respondent died on 25-12-2021, and a memo reporting the death was recorded. As no application for substitution of the deceased respondent was filed within the statutory period, the High Court dismissed the appeal as abated on 02-06-2022.
Statutory Analysis
- Section 100 CPC: Basis for filing the second appeal. The judgment applies the established abatement principle governing appeals when a sole party dies and no substitution is made.