Order XXII Rule 1 Manovikash Kendra Rehabilitation and Research Institute vs Prem Prakash
Lodha [2005 (7) SCC 224] ï¿½ During the pendency of the appeal if the
respondent/decree-holder died the appeal can only be decided after
impleading the legal heir of the deceased respondent when the right to sue
survives on him.
J.Ramajayam vs Rajasekaran [2020 (1) MLJ 721] ï¿½ A suit for
declaration and injunction based on a will is filed against the defendants.
Pending suit, the 1st defendant died but the legal representatives are not
impleaded. The suit was abated against the deceased 1st defendant.
Thereafter, the suit was decreed against the 2nd defendant. The High Court
has held that as per the decree the will as against the deceased 1st
defendant is invalid and as against the 2nd defendant is valid. It amounts
to two conflicting decrees. The court cannot proceed with the case in the
absence of the legal heirs of the deceased 1st defendant. Therefore, the
suit as a whole stand dismissed as abated in full.
Order XXII Rule 3 T.Chandrasekaran vs S.Kanagarajan [2007 (5) SCC 669] ï¿½ An appeal would
automatically abate unless the legal heirs of the deceased appellant or
respondent are brought on record within 90 days. The abatement can be set
aside if an application is filed to that effect. The abatement is depending
upon the facts of each and every case.
Hema Reddi vs Ramachandra Yallappa Hosmani [2020 (3) LW 256 (SC)] ï¿½ Order
XXII Rule 3 declares that where one of two or more plaintiffs die and the
right to sue does not survive to the surviving plaintiff or plaintiffs alone
inter-alia the court on the application substitute the legal representatives
of the deceased plaintiff and proceed with the suit.
Order XXII Rule 4 Shahazadabi vs Halimabi [2004 (7) SCC 354] - When no application is
made to implead the legal representative of the deceased defendant the suit
shall abate as against the deceased defendant. As against the other
defendants, the suit will not abate as a whole. But if the case is of such a
nature that the absence of legal heirs of the deceased respondent prevents
the court from hearing the suit or appeal as against other respondents the
suit or appeal abates in toto.
C.Ramakrishnan vs K.Govindhan [2018 (2) LW 115] ï¿½ The period of
limitation under Article 120 of the Limitation Act is 90 days from the date
of death of the defendant to bring his legal representatives on record. If
no application is filed the suit will abate against the deceased defendant.
G.V.Mohana Krishnan vs Sri Prasanna Vinayagar Temple Trust [2019 (2)
MLJ 346] ï¿½ When the right to sue survives against the other defendants there
will be no abatement and the suit shall be proceeded against the surviving
defendants. But when the right to sue does not enure to the surviving
defendants the order to proceed with the case against the surviving
defendants is liable to be set aside.
Selvaganesan vs Kalaselvi [2019 (4) CTC 138] ï¿½ Decree was passed
against defendants 1 and 2 without passing an order of exemption to implead
the legal representatives of the deceased 1st defendant. A decree was levied
in execution against the 2nd defendant. The legal heirs of the deceased 1st
defendant sold the suit property in favour of a third party. Third-party
filed an application assailing the said decree as nullity and inexecutable.
But the executing court dismissed the same. On revision, the said order was
set aside by the High Court on the ground that the said decree is nullity
Shunkara Lakshmi Narasamma vs Sagi Subba Raju [2019 (1) LW 571(SC)] ï¿½
If the interest of the co-defendants is separate as in the case of co-owners
the suit will abate against the deceased defendant. The suit will not abate
as a whole. If the case is of such a nature in the absence of legal
representatives of the deceased defendant prevents the court from hearing
the suit as against the other defendants the suit abates in toto.
- Order XXII Rule 4(4)
T.Gnanvel vs T.S.Kangaraj [2009 (14) SCC 294] ï¿½ Exemption to bring on record
the legal heirs of the deceased defendant must be made before the judgment
Order XXII Rule 5 Chhabil Dass vs Papu [2006 (12) SCC 41] ï¿½ Once the question as to who
is the legal representative of the deceased is decided at the stage of
impleadment that question cannot be reopened at the later stage (the
principle of constructive res judicata will apply).
Jaladi Suguna vs Satyasai Central Trust [2008 (8) SCC 521] ï¿½
Impleadment of legal heirs of the deceased in a suit or appeal is for the
limited purpose of adjudication of the case and not for the determination of
proprietary rights which can be determined by way of a separate suit.
Mahanth Saxyanand vs Shiyamlal Chauhan [2018 (3) LW 207 (SC)] ï¿½ The
procedure contemplated under Order XXII Rule 5 is mandatory and shall not be
skipped or ignored by the court. The order under Order XXII Rule 5 is
summary in nature it will not operate as res judicata between the legal
representatives of the deceased person. The order is only to determine who
should be brought on record in the place of the deceased person to continue
Kathalingam vs Muniyandi Thevar Kovakkal and others [2019 (2) TNCJ
289] ï¿½ Suit for recovery of possession filed by the plaintiff was decreed
against the defendant. The first appeal was also dismissed. In the second
appeal, the respondent/plaintiff died his legal representatives are
impleaded as respondents 2 and 3, and thereafter, the second appeal was
dismissed. In the execution petition, the respondent/defendant contended
that the will executed by the deceased plaintiff in favour of the
petitioners is forged and the decree is a nullity. The High Court has held
that the judgment debtor has not challenged the order impleading the
respondents 2 and 3 in the place of the deceased 1st respondent passed by
the Honourable High Court. Therefore, it is not open to the judgment debtor
to challenge the said decree and assail the will executed by the
Varadharajan vs Kanagavalli [2020 (2) LW 242 (SC)] ï¿½ Where the
appellant is the sole claimant of the estate of the deceased based on will,
the executing court has found that the appellant is the legal representative
of the deceased competent to execute the decree and to take it to his
C.Naveen Kumar vs S.Chandrasekar [2020 (2) CTC 388] ï¿½ The appellate
court shall direct the lower court to determine who is the legal heir of the
deceased under Order XXII Rule 5 keeping the appeal pending with a further
direction to direct the lower court to return the records together with
evidence if any recorded and its finding and reasons.
Order XXII Rule 9 Perumon Bhagawati Devaswon vs Bhargavi Amma [2008 (8) SCC 321] ï¿½ The
following three conditions must exist to condone the delay in applying to
set aside the abatement (even though the period of delay is considerable and
a valuable right might have accrued to the opposite party)
- the respondent had died during the period when the appeal has been
pending without any hearing dates being fixed
- when the counsel for the deceased respondent had not reported the death
of the respondent to the court and the court does not give notice of the
same to the appellant
- the appellant avers that he is unaware of the death of the respondent.
Order XXII Rule 10Rakesh Kumar Gupta vs Ravindra Kumar Gupta [AIR 2009 (NOTES OF CASES) 2262] ï¿½
The beneficiary under a will cannot file an application under Order XXII Rule 10
of CPC during the lifetime of the testator.
Devendra Kumar Sarewgee vs Purbanchal Estates Private Limited [2006 (9) SCC
199] ï¿½ Purchaser of the suit property during the pendency of the suit is a
transferee pendente lite liable to be impleaded.
Order XXII Rule 10 A Perumon Bhagawati Devaswon vs Bhargavi Amma [2008 (8) SCC 321] - A duty is
cast upon the advocate appearing for the defendant to inform the court about the
death of such defendant. After the same is reported the court will direct the
plaintiff to take steps to bring the legal representative of the deceased
defendant on record. The need for diligence commences from the date of such
knowledge. If the death of the defendant is not informed by the counsel it is an
indication of negligence or want of diligence.
B.K.Basha vs Mohammad Ali [2018 (5) MLJ 44] ï¿½ The counsel for the defendant
failed to comply with the provision of Order XXII Rule 10A of CPC namely to
inform the death of the deceased defendant. The decree passed therein against
the dead person is not a nullity and it is executable.
Shankara Narayanan and Others vs M.Mariyappan and Others [2019 (1) TNCJ 334] ï¿½
Application to condone the delay in filing the application to set aside the
abatement does not contain the averment when the petitioner came to know about
the death of the deceased. Further, no details are averred that the counsel for
the defendant has not informed the date of death of the defendant. As no proper
and convincing reasons are averred to condone huge and inordinate delay the same
cannot be condoned. The lower court order dismissing the delay condonation
petition does not require any interference.