Limitation and abatement principles: bona fide review time may be excluded, and abatement relief can extend to death of either party.

Time bona fide spent in prosecuting a review application with due diligence may be treated as sufficient cause for delay under the Limitation Act, so that the period can be excluded when computing time for an appeal. The court also held that relief from abatement under the Code was not confined to abatement caused by the death of a plaintiff; it extended to abatement arising from the death of a defendant as well, and an abatement order could be set aside where the representatives were already on record and the order had been made without proper basis. The result described was restoration of the suit and hearing on the merits.

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Issues: (i) whether the time spent in prosecuting a review application in good faith and with due diligence could be excluded while computing limitation for an appeal; and (ii) whether an order of abatement entered in relation to the death of parties could be set aside under the Code.

Issue (i): whether the time spent in prosecuting a review application in good faith and with due diligence could be excluded while computing limitation for an appeal

Analysis: The governing principle was that Section 5 of the Indian Limitation Act permits admission of an appeal after time where sufficient cause is shown. The Court treated the time spent in pursuing a proper review remedy, prosecuted with due diligence and in good faith, as capable of constituting sufficient cause for delay in filing the appeal. It approved the settled procedural rule that the interval consumed by a bona fide review proceeding should be added to the period available for appeal, and declined to disturb the long-established practice followed by the Indian courts.

Conclusion: The time spent in the review proceedings was to be excluded, and the appeal was within time.

Issue (ii): whether an order of abatement entered in relation to the death of parties could be set aside under the Code

Analysis: The Court construed the provisions dealing with death of parties and abatement together. It held that the relief from abatement under Section 371 of the Civil Procedure Code (1882) was not confined to cases arising only from the death of a plaintiff, but extended to abatement arising under the provision relating to the death of a defendant as well. The Court also disapproved the ex parte manner in which the original abatement order had been made, and held that the representatives already on record prevented any proper basis for abatement on the facts of the case.

Conclusion: The order of abatement was liable to be set aside, and the restoration of the suit to the file was justified.

Final Conclusion: The appeal succeeded, the abatement order was set aside, and the matter was remitted for hearing on the merits.

Ratio Decidendi: Time bona fide spent in prosecuting a proper collateral proceeding may be treated as sufficient cause for delay under the limitation law, and the statutory power to relieve against abatement applies to abatement arising from the death of either a plaintiff or a defendant where the Code so provides.

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