Is delay condonation under Section 5 of the Limitation Act available when an appeal is filed against a dead respondent?

No. Section 5 of the Limitation Act applies only to appeals that are otherwise maintainable but filed late. An appeal against a deceased person is void ab initio and cannot be rendered valid by condonation of delay.

What should a government department do if it discovers a respondent has died before filing an appeal?

It must file a fresh appeal against the legal heirs of the deceased within the statutory limitation period, accompanied by an affidavit disclosing the death and seeking permission to amend the cause title.

Appeal against deceased respondent abates Allahabad HC

Q: Can an appeal filed against a deceased person be saved by filing a substitution application under Order XXII Rule 4 CPC?

No. Order XXII Rule 4 CPC applies only when a party dies during the pendency of the appeal. If the appeal is filed against a deceased person, it is a nullity and cannot be cured by substitution.

The Allahabad High Court has unequivocally held that an appeal filed against a deceased respondent is a legal nullity, incapable of being revived by substitution or delay condonation. This ruling clarifies a critical procedural principle under the Code of Civil Procedure and has direct implications for litigants and government departments pursuing appeals in civil and land acquisition matters.

Background & Facts

The Dispute

The dispute arose from a land acquisition proceeding under the Land Acquisition Act, 1894. The Reference Court, in L.A.R. No. 46 of 1991, awarded compensation at Rs. 2,00,000 per acre to landowners, including Kailash Singh, on 31.03.2018. The State of Uttar Pradesh, dissatisfied with the award, sought to file an appeal but failed to do so within the statutory period of 60 days.

Key Facts

The Reference Court’s award was passed on 31.03.2018.
The landowners, including Kailash Singh, initiated execution proceedings on 15.01.2019 (Execution Case No. 5 of 2019).
The District Government Counsel (D.G.C.) appeared in the execution proceedings and repeatedly sought adjournments.
On 21.10.2021, the executing court dismissed the State’s application to recall an attachment order on its treasury account.
On 30.08.2021, the executing court ordered attachment of the District Magistrate’s account at Union Bank, Mau, for Rs. 25,50,000.
Kailash Singh died on 27.06.2021, prior to the filing of the appeal.
On 27.08.2021, the legal heir Kuwar Prakash Singh was brought on record in the execution case.
The State filed its appeal on 09.09.2022, with a delay of 1,516 days.
The State filed a delay condonation application on 09.09.2022.
Kuwar Prakash Singh filed a counter affidavit on 02.02.2024, disclosing Kailash Singh’s death and opposing condonation.
The State filed a substitution application on 24.09.2025, over four years after Kailash Singh’s death.
Kuwar Prakash Singh filed an abatement application on 16.09.2025.

Procedural History

31.03.2018: Reference Court awards compensation of Rs. 2,00,000 per acre.
15.01.2019: Execution Case No. 5 of 2019 filed by landowners.
27.06.2021: Respondent Kailash Singh dies.
27.08.2021: Legal heir Kuwar Prakash Singh substituted in execution proceedings.
30.08.2021: Court orders attachment of State’s treasury account.
21.10.2021: State’s application to recall attachment dismissed.
09.09.2022: State files First Appeal with 1,516-day delay.
02.02.2024: Respondent files counter affidavit disclosing death of Kailash Singh.
16.09.2025: Abatement application filed by Kuwar Prakash Singh.
24.09.2025: State files substitution application and delay condonation.
01.04.2026: Judgment delivered by the High Court.

The Parties' Positions

For the Appellant (State of U.P.)

Delay in filing appeal was due to internal bureaucratic delays in obtaining permission, granted only on 19.05.2022.
Was unaware of Kailash Singh’s death until the counter affidavit of 02.02.2024.
Substitution application filed within three months of learning of the death.
Requests condonation of delay under Section 5 of the Limitation Act, 1963.

For the Respondent (Kuwar Prakash Singh, Legal Heir)

State was fully aware of the execution proceedings and Kailash Singh’s death since 27.08.2021.
No permission was required to substitute a deceased party in an appeal.
Delay in filing appeal and substitution was deliberate and negligent.
Appeal filed against a dead person is a nullity under Order XXII Rule 4 CPC.
Substitution cannot cure a non-existent appeal.

Relief Sought

The State sought condonation of delay in filing the appeal and substitution of Kailash Singh’s legal heir. The respondent sought dismissal of the appeal as abated and rejection of all applications as legally unsustainable.

The Legal Issue

Can an appeal filed against a deceased respondent be revived by subsequent substitution or condonation of delay under Section 5 of the Limitation Act, 1963, or is such an appeal a legal nullity from inception?

Arguments Presented

For the Appellant

The State relied on internal administrative delays in securing permission to file the appeal and claimed ignorance of the respondent’s death until 02.02.2024. It argued that substitution under Order XXII Rule 4 CPC was timely filed after discovery of the death and that the delay should be condoned under Section 5 of the Limitation Act. It cited general principles of equitable relief and procedural flexibility.

For the Respondent

The respondent emphasized that the State had been actively engaged in the execution proceedings since 2019, with the D.G.C. appearing regularly and seeking adjournments. The legal heir was formally brought on record in the execution case on 27.08.2021, making the State’s claim of ignorance untenable. The respondent argued that Order XXII Rule 4 CPC applies only when a party dies during pendency of proceedings, not when the appeal is filed against a deceased person. The appeal, therefore, was a nullity.

The Court's Analysis

The Court undertook a rigorous analysis of Order XXII of the Code of Civil Procedure, particularly Rule 4, and examined precedents from the Calcutta and Delhi High Courts. It held that Rule 4 permits substitution only when a party dies during the pendency of the appeal. If the appeal is filed against a person who is already deceased, the appeal is not merely defective - it is non-existent in law.

"If an appeal be preferred against a dead respondent, the appeal itself is still born and is no appeal in the eye of law. Nothing in Order 22 of the Code of Civil Procedure will revive the appeal, when the death of the respondent comes to light."

The Court rejected the State’s argument that ignorance of death justified delay. It noted that the State had been a party to the execution proceedings where the legal heir was already on record since 27.08.2021, and the D.G.C. had repeatedly appeared before the executing court. The State’s failure to verify the status of the respondent before filing the appeal constituted gross negligence, not inadvertence.

The Court further distinguished the present case from situations where a party dies after filing. In such cases, abatement and substitution are procedurally valid. Here, the appeal was filed against a dead person, rendering it void ab initio. The Court cited State of West Bengal v. Manisha Maity and Ravinder Dabas v. Govt. of NCT of Delhi to affirm that no amount of condonation can cure a jurisdictional defect.

The Court emphasized that the principle of nemo dat quod non habet applies: one cannot appeal against a person who has no legal existence at the time of filing. The State’s conduct, including prolonged inaction despite court-ordered attachments and repeated assurances, demonstrated a disregard for judicial process.

The Verdict

The appeal is dismissed as a nullity. The substitution application, delay condonation application, and abatement application are all dismissed. The judgment and award of the Reference Court dated 31.03.2018 is affirmed. The State is directed to pay the awarded compensation of Rs. 2,00,000 per acre, along with statutory interest and costs, to the legal heirs of Kailash Singh. No further proceedings shall be entertained on the appeal.

What This Means For Similar Cases

Appeal Against Deceased Is a Jurisdictional Nullity

Practitioners must verify the legal status of all respondents before filing an appeal.
Filing against a deceased person - even if unintentional - renders the appeal void from inception.
Substitution under Order XXII Rule 4 CPC is not a remedy for this error.

Delay Condonation Cannot Cure Non-Existence

Section 5 of the Limitation Act applies only to timely filed appeals with procedural delays.
It cannot revive an appeal that was never legally valid.
Courts will not condone delay where the defect is jurisdictional and the party acted with gross negligence.

Government Departments Must Maintain Procedural Vigilance

Government counsel must cross-check party status in execution proceedings before initiating appeals.
Internal bureaucratic delays are not acceptable excuses for missing statutory deadlines.
Failure to act promptly after learning of a party’s death may result in permanent loss of remedy.
Always confirm the survival status of parties in pending litigation before filing appeals.
If a party dies before filing, file a fresh appeal against the legal heirs within the limitation period.
Do not rely on substitution applications to cure jurisdictional defects.

Order 22 CPC | Appeal Against Deceased Respondent Abates Irreversibly; State’s Negligence Bars Substitution : Allahabad HC