Legal Provisions of Order XXII of Code of Civil Procedure, 1908 (C.P.C.), India – Abatement in General

An order holding that the right to sue did not survive after the death of the original plaintiff is, in substance, an adjudication and final determination of the right of the legal representatives and amounts to a decree under S. 2 (2) and an appeal is maintainable under Order XLI, Rule 1, C.P.C.

As to cases in which the right to sue survives, the relevant provisions are to be found in S. 37 of the Indian Contract Act and S. 306 of the Indian Succession Act. Section 37 of the Indian Contract Act provides that “promises bind the legal representatives of the promisors in case of the death of such promisors before performance unless a contrary intention appears from the contract.” Such a contrary intention appears in contracts involving the exercise of special skill or involving personal confidence.

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Section 306 of the Indian Succession Act, in effect, provides that the right to sue does not survive in suits for defamation, assault or other personal injuries not causing the death of the party; and also in cases where after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

The result is that the right to sue survives in such actions as suits for damages for breach of contract, suits for recovery of property, suits for recovery of debt, etc. The right to sue does not survive in suits to recover damages for breach of contract of marriage, death of father during pendency of the suit for damages for seduction of daughter, etc. Death of the applicant for leave to sue in forma pauperis also causes abatement.

Order XXII is not applicable to writ proceedings, or writ appeals. But after the death of the respondent it is incumbent on the part of the petitioner, or appellant to substitute the legal heirs of such respondent within a reasonable time.

Even if application is filed beyond 90 days the write proceeding does not result in automatic abatement. In appropriate cases the High Court can condone the delay in filing the substitution application but the inaction of the petition be also taken into consideration to avoid undue harassment to other party.

The husband died after obtaining ex parte divorce decree against his wife. Wife is entitled to move application for setting aside ex parte decree and legal heirs of deceased husband can be substituted as opponents or respondents.

Allottee of plot was represented by widow and daughter and both the legal representatives were already on record representing his estate. On the death of the widow the appeal does not abate on account of failure to substitute legal representatives.

A joint and inseparable decree was passed by trial court against first and second defendant and it was confirmed in first appeal. In second appeal no relief was sought against the second defendent. As such second appeal against the second appeal cannot be said to be abated and refused by High Court to consider the case on merits is improper.

The legal representative of the deceased is entitled to make any defence appropriate to his character as legal representative of the deceased. The heirs and legal representatives could urge all contentions which the deceased could have urged except only which were personal to the deceased.

This does not prevent the legal representative from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the title.

Legal Representatives:

Where the party died after the appeal was heard but before the judgment, the aggrieved person need not file an application in the High Court under Order XXII, Rule 3 or 4. C.P.C., to bring on record the legal representatives of the deceased-appellant or respondent and that it is enough that the legal representatives of the deceased party are impleaded co-nominee in the appeal filed against the judgment to represent the estate of the deceased respondent/appellant.

When plaintiff cannot be prevented from withdrawing suit:

Obviously, the plaintiff cannot be prevented from withdrawing the suit, if the counter-claim/set off has been filed in terms of the procedural law.

The concept of abatement is not applicable with regard to exercise of power of charity commissioner as to settling scheme for proper management of public trust as it can be exercised even suo motu. If such power is exercised on application of two interested persons, the death or withdrawal of one of two persons does not have the effect of ousting the power of charity commissioner.

Appeal would not abate due to failure of substitution of heirs of deceased when on the death of one of defendants, other defendant who was representing all heirs of the deceased widow were already on record.

When on death of defendant a person is impleaded as his legal representative as party defendant. All rights under Order XXII, Rule 4(2) and defences available to deceased become available to such person. If such person wants to claim independent right, title and interest in property then she had got herself to be impleaded in the suit as a party defendant. In which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree passed in the suit.

Defence available to legal representative of deceased:

Where legal representative had sought permission to file additional written statement. Nature of defence sought to be incorporated was not disclosed by him. It was not clear whether such additional written statement not disclosed by him. It was not clear whether such additional written statement was appropriate to his character as legal representative or was an independent right. Held, that order refusing permission to file additional written statement was proper. But it will not take away his right to amend written statement.

A personal cause of action, such as the personal requirement of the premises by the landlord, must perish with the death of the plaintiff and his legal representative cannot continue the proceedings on his death. If the legal representatives were permitted to continue the proceedings, the lis will assume a complexion wholly beyond the compass of the original cause of action.

Indeed, it is difficult to see how, without a fundamental alteration of the pleadings, proceedings could be continued. Such an alteration will fall beyond the scope of amendment of pleadings permissible under a most liberal interpretation of Order VI, Rule 17, C.P.C.

Rule 6 of Order XXII provides that whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment and the judgment may be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

Ejectment proceedings were initiated by agent of landlord. Agent died during the pendency of appeal. There is no need to substitute the legal representatives of the agent. The appeal does not abate since the matter has to be adjudicated by and on behalf of the principal.

In case where defendants held joint and indivisible interest the failure to bring legal representatives on death of one of defendants, the entire suit would abate. In such a case the proper course is to file a formal application or memo to transpose the existing defendant as legal representatives of the deceased defendant.

Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or deceased defendant, such question shall be determined by the Court. (Order XXII, Rule 5). In no case a decision under Order XXII, Rule 5, C.P.C., would operate as res judicata between the same parties or their successors-in-interest or their privies in a subsequent proceeding even when the said parties had been provided an opportunity to contest the issue and lead the evidence thereon. Such a proceeding is of a very summary nature against the result of which no appeal is provided for.

Procedure:

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. (Order XXII, Rule 2).

Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

Where within the time limited by law (i.e., within 90 days of the death) no application is made the suit shall abate so far as the deceased plaintiff is concerned and, on the application of the defendant, ,the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. (Order XXII, Rule 3).

Where a plaintiff, who had filed a suit for partition against his sons, dies, the right to sue survives to his widow and she can be added as the legal representative of the deceased plaintiff.

Right to future maintenance does not survive on the death of the plaintiff.

The death of the plaintiff during the pendency of the appeal in a personal action, e.g., suit for declaration that the plaintiff’s retirement was illegal, abates and an application by the legal representatives for bringing them on record and for continuance of the appeal is not maintainable.

In a suit for damages against counsel on the death of the plaintiff the suit abates if the claim is founded entirely on tort but survives if the claim is based entirely on contract. If the action is founded partly on contract and partly on torts then such part of the claim as relates to contract would survive and the other part would stand abated.

A suit filed by citizens challenging municipal board’s interference in their civil rights and amenities would not abate on the death of some of the defendants. It would abate against only those particular defendants who died and whose legal heirs have not been brought on record and in whose favour allotments of land have been made and permission granted, but not the citizens’ civil right as a whole.

Death of one of several defendants or of sole defendant:

Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to. be made a party and shall proceed with the suit. Where within the time limited by law (i.e., within 90 days of the death) no application is made the suit shall abate as against the deceased defendant. (Order XXII, Rule 4).

Application for setting aside abatement in considered by courts liberally on distinct and different considerations than that for condonation of delay under section 5 of Limitation Act (1963). It is not proper to dismiss an application of Government under Order XXII, Rule 4 for setting aside abatement with short delay of 15 days. The delay in official business be considered from with an approach from public justice perspective.

Suit was filed to avoid decree passed in previous suit on the ground of collusion and fraud by decree-holders and judgment of previous suit and they were made defendants. The judgment-debtor (defendant no. 1) died during the present suit and his name was allowed to be deleted. The decree in previous suit against him became final due to absence of substitution of his legal representatives and abatement of suit against him.

The present suit abated as a whole as the legality of that decree against the decree holder would become inconsistent with decree as against the judgment-debtor. So Order XXII, Rule 4(2) is inapplicable in the circumstances of the case.

In case of a divisible decree in favour of several reversioners against independent donees with specified shares in identifiable properties on failure to substitute legal representatives within reasonable time on death of one of the donees of specified items of properties under gift deed, the appeal stands abated only in respect of properties given to deceased under gift deed.

In a case of joint decree where there is no specification of shares of several decree-holders and where the decree is one and indivisible, the entire appeal should fail if one or more of the decree-holders dies during the pendency of the appeal and his heirs are not brought on the record within the period of limitation.

It is not open to the appellate court to determine the extent of the share of the deceased respondent in the absence of his legal representatives. Where the legal representatives have not been brought on the record during the period of limitation for the hearing of the appeal they cannot be so brought later on for the determination of the share of the deceased respondent in the disputed property.

If, however, there is any admission of the deceased decree-holder on the record indicating the extent of his share in the disputed property or there is anything in the judgment describing his share in the property then in that case the appeal would abate only to the extent of his interest so admitted or described.

To determine whether the appeal fails as a whole or only to the extent of the interest of the deceased respondent the test is whether in case the appeal is allowed against the respondents who are already on the record there would be two inconsistent decrees in the same case with respect to the same subject-matter or not.

In case there will be two inconsistent decrees which will be infructuous the appeal should fail as a whole because it would be fruitless to pass a decree which will be ineffective and incapable of execution in view of the decree in favour of the deceased respondent which has become final.

Where, however, there is no likelihood of two inconsistent decrees in case the appeal is allowed against the respondents who are on the record, and the decree passed in appeal can be executed, then in that case the appeal does not fail as a whole.

Where the suit by the plaintiff for a permanent injunction restraining all the defendants from interfering with him in irrigating his plot from a well and for recovery of damages for loss sustained because of interference was decreed and one of the defendants had died during the pendency of the appeal preferred by all the defendants and his legal representatives were not brought on record within the prescribed time, the appeal would abate not only against the deceased defendant but as a whole.

In such a case, two contradictory decrees would come into existence if the appeal was allowed and the same is not countenanced by Order XXII, Rule 4. In such a case Order XLI, Rule 4 would not be applicable. Order XLI, Rule 4 and Order XXII, Rule 4 operates in different fields and Order XLI, Rule 4 does not override or create an exception to the latter.

The party applying under Order VIII, Rule 9 has to provide cogent reasons for permission to file additional written statement. He cannot claim it as a matter of right. And the court, in exercise of its discretion, may or may not grant leave to present a fresh pleading. On the other hand, sub-rule (2) of rule 4 of Order XXII is not a rule of pleading.

It has nothing to do with Order VI, Rule 5 or Order V, Rule 7 and is independent of Order VIII, Rule 9. It allows a person made a party under Order XXII, Rule 4 to make “any defence”, the only limitation being that the defence so made must be “appropriate to his character as legal representative of the deceased defendant”.

Therefore, Order VIII, Rule 9 has no application in a case where legal representatives of the deceased defendant have filed a written statement under Order XXII, Rule 4 (2) without leave of the court and their written statement has to be taken note of by the court.

Where no cause is shown for condonation of delay for setting aside the abatement, the appeal shall be dismissed in view of the abatement, even though there may be strong case on merits, which shall not be a ground for condonation of delay.

The court, whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and the judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. [Order XXII, Rule 4 (4)].

When—(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representatives of the defendant under Rule 4 of Order XXII within the period specified in the Limitation Act, 1963, and the suit has in consequence abated and (b) the plaintiff applies after the expiry of the period of limitation for setting aside the abatement and also for the admission of that application under S. 5 of that Act on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved. [Order XXII, Rule 4 (5)].

It was incumbent upon the appellant to implead the heirs and legal representatives of deceased respondent No. 1 in time. The appellants were negligent in moving the proper application. The suit being for partition of joint family property, parties were closely interrelated and it was reasonable to believe that at least some of the appellants must have attended the funeral of the deceased.

Moreover, when a specific provision is made as provided in Order XXII, Rule 4 a resort to the general provision like Order I, Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same.

In Sangram Singh v. Election Tribunal, Kotah/ the Supreme Court observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipada Das v. Bimbal Krishna Sen Gupta.

Since, admittedly, no applications had been made to bring on record the legal representatives of the deceased appellants Nos. 1 and 5 from the respective dates, before the expiry of 90 days, their appeal stood abated. The question is whether the appeal of other appellants also abates.

It is the joint and inseverable decree of redemption granted in favour of respondents, which was questioned in the appeal. When that decree of redemption against appellants Nos. 1 and 5 had come to stand because of abatement of their appeal, that decree of redemption against appellants 2 to 4 alone cannot be set aside, for in that event the decree of redemption made against appellants 1 and 5 questioned in the appeal would stand while the decree against appellants 2 to 4 alone calls to be set aside. Since the decree for redemption being joint and inseverable, the appeal cannot be continued. In this view of the matter, the entire appeal stands abated.

By operation of Order XXII, Rule 4 read with Rule 11 of the Civil Procedure Code, when one of two or more defendants died and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. Rule 11 postulates the applicability of this Order to appeals.

As far as may be the word ‘plaintiff should be held to include an appellant, the word ‘defendant’ a respondent, and the word ‘suit’ an appeal. Thus at the appellate stage also the legal representatives of the deceased respective appellants and the respondents should be substituted as the legal representatives of the respective appellants/respondents.

Article 120 of the Third Division of the Schedule to the Limitation Act, 1963, provides 90 days from the date of death as the period of limitation to have the legal representatives of the plaintiff-appellants, defendant-respondent, as the case may be, to be brought on record.

After the expiry of 90 days, the appeal stands abated unless the appeal survives against the surviving appellants. Within 60 days after the expiry of 90 days, under Article 121, the abatement needs to be set aside. Since, admittedly, no application had been made to bring on record the legal representatives of the deceased appellants Nos. 1 and 2 from the respective dates, before the expiry of 90 days, their appeal stood abated. The question is whether the appeal of other appellants also abates.

It is the joint and inseverable decree of redemption granted in favour of respondents, which was questioned in the appeal. Since, the decree for redemption being joint and inseverable, the appeal cannot be continued. In this view of the matter, the entire appeal stands abated.

Title suit:

Death of one of the parties representing one branch of the claimants while other claimants already represent his estate will not result in abatement of the appeal.

It is no doubt true that a code of procedure “is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up”. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented.

The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to parties.

In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure.

As procedure is aptly described to be the hand-maid of justice, the court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice.

It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties in any particular case and justice according to law.

If procedural laws are properly observed, as they should be observed, no problem arises for the court for considering whether any lapse in the observance of the procedure needs to be excused or overlooked.

In the larger interests of administration of justice depending on the facts and circumstances of a particular case the Court may, and the Court in fact does, excuse or, overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best.

It is now well-settled that an abatement can be set aside at any time even beyond the period prescribed for making an application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application.

If, irrespective of the provisions of the Code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties the result may really amount to a denial of justice and in an indefinite prolongation of a litigation.

The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, has been enacted for expeditious disposal of cases in the interest of proper administration of justice.

It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned.

For doing justice to the parties, the courts have consistently held that whenever ‘sufficient cause is shown by a party at default in making an application for substitution, abatement will have to be set aside as the good cause shown for explaining the delay in making the application is sufficient justification to deprive the other party of the right that may accrue to the other party as a result of the abatement of the suit or appeal.

The courts have also consistently ruled that laches and negligence furnish no proper grounds for setting aside the abatement. In such cases, a party guilty of negligence or laches must bear the consequences of his laches and negligence and must suffer.

In appropriate cases, taking into consideration all the facts and circumstances of a case the court may set aside the abatement, even if there be slight negligence or minor laches in not making an application within the time provided an overall picture of the entire case requires such course for furthering the cause of justice.

When negligence and laches are established on the part of the party who seeKs to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms. (Per Amarendra Nath Sen, J. in Bhagwan Swaroop v. Mool Chand.

If, in any suit, it shall appear to the court that any party who has died during the pendency of the suit has no legal representatives, the court may, on the application of any party to the suit proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator General, or an officer of the court or such other person as it thinks fit to represent the state of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been if a personal representative of the deceased person had been a party to the suit. [Order XXII, Rule 4A (1)].

Before making an order under this rule the Court: (a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit, and (b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person. [Order XXII, Rule 4A (2)].

Where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the prescribed period of limitation, the proceeding will not abate on that account.

For final determination of the question with regard to the genuineness of a will probate proceedings must be resorted to. A decision given under Order XXII, Rule 5, CPC. Impleading a person to be legal heir on the basis of the will cannot be said to be finally determining the genuineness of the will.

Abatement of the appeal:

No order of the Court is necessary for effecting abatement of the appeal. When an appeal abates the memorandum of appeal is placed before the court. The memorandum of appeal constitutes a proceeding pending in the Court and it is necessary for the Court to finally dispose of that proceeding.

When it records the order that the appeal has abated what it does in fact is to make an order disposing of the proceeding. An appeal must not be confused with the memorandum of appeal. An appeal is a remedy while the memorandum of appeal is a proceeding giving effect to that remedy.

When the appeal abates, the remedy is extinguished. But the proceeding which has been instituted for the purpose of giving expression to that remedy has yet to be disposed of. Its disposal, in the circumstances, may be a mere formality but nonetheless a necessary and proper formality.

In the face of the explicit language in Rule 6 of Order XXII, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if the judgment had been pronounced before the death took place.

Appeal in Supreme Court does not abate when application in Supreme Court was filed under Order XXII, Rule 4 within 30 days from the date of the knowledge there is no delay in making the application to bring the legal representatives on record in the appeal. The application to bring legal representatives was allowed.

The appeal was filed against the award which was common and indivisible against the appellants. On death of one of the appellants his legal representative were not brought on record within the time allowed by the court. The appeal abated against all the appellants.

Suit for dissolution of partnership and rendition of accounts was dismissed. The first appeal against it was dismissed. During the pendency of second appeal two partners died but their legal representatives were not brought on record. The second appeal stood abated as against all the partners.

First respondent died during the pendency of appeal and his defence based on will stood upheld by High Court. Relief was joint and inseparable as all the respondents jointly entitled to the property under the will. The appeal stood abated against all the respondents.

Effect of Abatement:

Where a suit abates or is dismissed under Order XXII, no fresh suit can be brought on the same cause of action. The plaintiff or the person claiming to be the legal representative of a deceased plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit, (Order XXII, Rule 9).

Delay in filing the application for setting aside abatement was condoned as the delay was caused as counsel of sole appellant deceased could not communicate early to legal representative for making such application and they were unaware of appeal filed by their father. The abatement of suit was set aside.

In case of dispute about coparcenary property by three brothers in absence of evidence that one of the brothers was karta of joint Hindu family, the appeal would abate for failure to substitute the legal representative of the deceased co-owner.

Under the provisions of the Code, abatement comes into effect automatically on the expiry of the period prescribed, from the date of death of the deceased party. No specific order by any court is required to bring into effect abatement and, therefore, no appeal is provided against an order recording the fact that the suit has abated.

The Code, however, provides for an application for setting aside the abatement. An order refusing to set aside abatement or granting an application for setting aside the abatement has been made appealable.

An application to set aside abatement must be made within sixty days from the date of the abatement. The court can, however, condone the delay on filing an application under S. 5 of the Indian Limitation Act. (Order XXII, Rule 9.).

Nothing in Rule 9 shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under Order XXII [Explanation to Rule 9, Order XXII].

The respondent died during the pendency of the appeal, but the application under Order XXII, Rule 2, sub-rule (3) for setting aside the abatement was delayed, and the condonation of delay was sought on the ground that the appellant came to know about the death of the respondent late.

The High Court did not feel satisfied with the reasons assigned for the delay in filing the application. The fact that the deceased respondent was a prominent citizen and his death was reported in newspapers was not sufficient for declining the grant of relief.

Their lordships of the Supreme Court were unable to appreciate that litigants are presumed to read newspapers so as to be aware of the death of prominent citizens from the obituary columns of leading national newspapers. And that was the only ground for declining to grant relief. It did not carry conviction.

The Supreme Court held that the appellant had shown sufficient cause which prevented him from moving the application for substitution in time in the High Court and accepted the same as sufficient to condone the delay. The substitution was accordingly granted and the delay condoned.

Having regard to the social and economic conditions prevalent in the country and particularly in the rural areas and the large scale poverty and illiteracy, which is rampant in the country, as a result of which most people do not know what are their rights and obligations, the applications for condonation of delay in bringing legal representatives on record should be considered liberally by the courts. No technical view should be taken which would impede the course of justice.

The appellants being admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on the death of a respondent the legal representatives have to be brought on record within a certain time. The abatement was accordingly set aside and the High Court directed to proceed and decide the writ petition after bringing the legal representatives on the record.

In Brij Inder Singh v. Kanshi Ram, it was held by the Privy Council that if legal representatives of a deceased party were substituted at one stage of the suit, even in the course of an interlocutory application it was sufficient for all stages of the suit.

However, since a writ petition cannot be treated as a stage of a suit technically speaking, it could not be said that the heirs would be deemed to have been substituted in the appeal. But where the case is remanded to the court below as a result of the decision in the writ petition, the matter will be deemed to be pending in the Civil Court in pursuance of the remand order, and a formal application for substitution of names will be necessary to keep the record straight. For such an application no limitation has been prescribed. The appeal pending in the civil court will therefore not abate.

Abatement of a proceeding takes place on its own force by passage of time. No specific order for abatement is envisaged under Order XXII. When an appeal abates for want of substitution as envisaged by sub-rule (1) of Rule 9 of Order XXII, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. It is only for setting aside the abatement that a specific order is necessary under Order XXII, Rule 9, C.RC.

An order refusing to set aside abatement is specifically appealable as an order under Order XLIII, Rule 1 (k), C.RC. It does not fall within the definition of decree in S. 2 (2) as it does not imply adjudication on merits. Therefore, no second appeal under S. 100 would lie against that order for a second appeal lies against a decree passed in appeal.

An order under Order XXII, Rule 9, C.P.C. appealable as an order would not be a decree and, therefore, no second appeal would lie against that order. Such a second appeal is liable to be dismissed as incompetent.

A second appeal under Letters Patent against a decision of the High Court in an appeal from order under Order XLIII, Rule 1 will also not lie. But the dismissal of the second appeal as being incompetent will not have any impact on the disposal on merits of the appeal from the order under Order XLIII, Rule 1 (k).

Effect of Abatement of appeal as against co-respondent:

When Order XXII, Rule 4, C.P.C. does not provide for the abatement of the appeals against the co-respondents of the deceased respondent, there can be no question of abatement of the appeals against them. The only question is whether the appeal can proceed against them.

The provisions of Order I, Rule 9, C.P.C. also show that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and, therefore, dismiss it.

The heirs of the deceased defendant, who are no party to the suit, will not be bound by the decree and in that sense the decree will not be effective against the heirs. But that does not mean that no effective decree can be passed against other defendants. If an effective decree can-‘be passed against other defendants, the whole suit cannot abate.

The question whether a court can deal with such matters or not, will depend on the facts of each case and, therefore, no exhaustive statement can be made about the circumstances when this is possible or is not possible.

It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court.

The test to determine this has been described in diverse forms. The court will not proceed with an appeal (a) when the success of the appeal may lead to the court’s coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and, therefore, which would lead to the court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court; and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.

Abatement of Appeal—Effect:

Where the Court below had found the adoption in favour of plaintiffs, then the issue of adoption in respect of one appeal would become final resulting in the abatement of said appeal as well as other appeals to avoid conflicting decrees.

Abatement of suit:

If right to sue survives and no application for bringing L.Rs. of deceased party filed within time, suit automatically abated.

Duty of Pleader to communicate to court death of a party:

Whenever a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it, and the court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. (Order XXII, Rule 10-A).

Insolvency of the plaintiff:

The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors shall not cause the suit to abate unless such assignee or receiver declines to continue the suit or unless for any special reason the court otherwise directs to give security for the costs thereof within such time as the court may direct.

Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff’s insolvency and the court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff’s estate. (Order XXII, Rule 8).

After the abatement of suit against legal heirs of insolvent, it cannot be revived on annulment of insolvency. Annulment of insolvency does not automatically render judicial orders passed in suit filed against insolvent as ineffective or non Est.

Marriage:

The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and where the decree is against a female defendant, it may be executed against her alone.

Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where husband is by law entitled to the subject-matter of the decree. (Order XXII, Rule 7).

Decree in relation to dead person:

A decree passed in favour of a person who was dead at the date of the institution of the suit is a nullity. Similarly, a decree passed against a defendant, who died pending the suit without bringing the legal representative on the record is a nullity and cannot be executed against the legal representative. A decree passed against a respondent in ignorance of the fact of his death is also a nullity.

Execution proceedings:

The rules relating to the death of a party pending the suit do not apply to proceedings in execution.

Assignee before final order in the suit:

In case of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. [Order XXII, Rule 10].

Where a suit for possession as filed by the trustees in their representative capacity and death of some of the trustees took place pending suit, an application under Order XXII, Rule 10, C.P.C. for impleading newly appointed trustees filed more than a year after their appointment would not be barred by time and the application was maintainable as newly appointed trustees could file such an application whenever they thought fit in view of the absence of limitation under Order XXII, Rule 10, C.P.C.

Before death the co-owners having sold their shares by registered sale deeds in favour of other respondent on record, there is no need to bring the legal representatives of the deceased on record or to transpose them as legal representatives.

Even if it is held that Order XXII of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition for writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives.

After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For the purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent.

However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the court can take into consideration the facts and circumstances of a particular case for the purpose of condoning the delay in filing the application for substitution of the legal representative.

This power has to be exercised on well-known and settled principles in respect of the exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be.

At the same time, the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.

In partition suit some respondents died. Before their death, they had sold their respective shares by registered sale deeds in favour of other respondents. So, by operation of Order XXII, Rule 10, C.P.C. their respective interest devolved by transfer on the respondents who were already on record. Therefore, there, was no need to bring legal representatives of the deceased on record or to transpose them as legal representatives.

Order XXII, Rule 12 lays down that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. Rules 3 and 4 of Order XXII provide for making of an application for substituting the heirs of the plaintiff and defendant within the time provided by law, with the result that if such an application is not made, the suit stands abated.

When Rule 12 lays down that nothing in Rules 3 and 4 will apply to execution proceedings it means that even if heirs are not brought on record, execution proceedings will not abate. The legal representatives of the deceased decree-holder are not required to move substitution application and as held by a division bench of the Allahabad High Court in Manmohan Dayal v. Kailash Nath, they are entitled to ask for continuation of execution proceedings without moving any fresh application for execution.

By the death of decree-holder or judgment debtor, the execution is not abated and legal representatives may be allowed to be brought on record within reasonable time.

Devolution of interest during suit:

If successor in interest not brought on record, decree passed against predecessor in interest not ab initio void.

Devolution of interest during suit:

Prayer for leave of Court to continue suit can be made not only by person upon whom interest has devolved but also by plaintiff or any other person interested.

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