After Defendants Say Their Lawyer Died During Appeal, Karnataka HC Sends Stay Plea Against Specific-Performance Decree Back For Reconsideration

The petitioners were defendants in a specific-performance suit, which was partly decreed. Respondent No. 1’s appeal was allowed, resulting in a decree for the suit in its entirety.

The petitioners stated that their advocate on record had died during the appeal and that they had not been informed of the appeal’s disposal. They filed a review petition and an application for stay; the appellate court rejected the stay application without addressing the advocate’s death. The petitioners challenged that order under Article 227 of the Constitution.

The petition invoked the High Court’s supervisory jurisdiction under Article 227 of the Constitution and concerned an application under Order XLI Rule 5 read with Section 151 of the Code of Civil Procedure.

The judgment does not cite any precedent or set out a broader legal test; it proceeds on the principle that the court deciding an application must consider a material contention relevant to that application, including the asserted death of counsel and its effect on a party’s ability to prosecute the matter.

The petitioners had specifically pleaded that their advocate died during the appeal and that they consequently lacked information about its proceedings. Although the appellate court noted the petitioners’ counsel’s absence, its order did not address the asserted death of counsel.

The High Court found force in the contention that this material circumstance had not been considered and therefore held that the stay application required reconsideration by the appellate court.

It remitted the matter to the appellate court to reconsider the application, taking account of the asserted death of the petitioners’ advocate and hearing both sides; all contentions were left open. The interim order granted by the High Court was extended until the revisional court considers the application.