Article 121 (Art. 171 of the Act of 1908):
The period of limitation for an application under the Civil Procedure Cod for an order to set aside abatement is sixty days and the limit commences from the date of abatement.
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ADVERTISEMENTS:
In Civil Law an abatement of a suit is a complete termination of it. Abatement of a matter or cause is caused by the same becoming defective on account of the death of the parties materially interested.
A plea in abatement is a plea put in by the defendant, in which he shows cause to the Court why he should not be impleaded or sued; or if impleaded, not in the manner and form he then is; therefore praying that the writ or plaint may abate; that is, that the suit of the plaintiff may for that time cease.
A plea in abatement is a plea taken with reference to actions at law to the effect that the action is utterly dead and cannot be revived except by commencing a new action.
In view of Rule 9 of Order XXII of the Civil Procedure Code, the failure to substitute the legal representatives of the deceased plaintiff or defendant when such substitution has to be made in terms of Rules 3 and 4 of the Order XXII of the Civil Procedure Code respectively, then the suit automatically abates where no such application is filed within the time prescribed under Art. 120 of the Limitation Act, 1963. Similar is the case when no application is made within the prescribed time for substitution of legal representative of the deceased appellant or respondent.
ADVERTISEMENTS:
The consequence of the abatement of such suit or appeal is that no suit can be brought on the same cause of action. Only remedy open to the plaintiff or the person claiming to the legal representative of the deceased plaintiff is to get the abatement of the suit set aside by making an application for the purpose within time and the Art. 121 provides for a limitation of 60 days for such application from the date of the abatement.
A distinction has to be made between the cases when there is | abatement for failure to bring the legal representative on record within the period of limitation prescribed by Art. 120 of the Limitation Act and the cases when the Court orders abatement on the ground that the petitioner is not the legal representative or that the suit has abated because the right to sue does not survive. In the latter case the application for setting aside abatement cannot be made. But in the former case, the application for setting aside abatement is maintainable and the Art. 121 attracts such cases.
The period of limitation under the Art. 121 is 60 days and it starts from the date of abatement. In Govinda Rao v. Mahadev, (AIR 1977 SC- 627), it has been held that an application to set aside an order of abatement must be made within 60 days under Art. 121; otherwise it will be barred; but the period of limitation under the Art. 121 may be extended if the applicant can show sufficient cause for the delay under Section 5 of the Limitation Act, 1963.