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Death, Marriage And Insolvency Of Parties Order Xxii Of CPC

  1. Order XXII Rule 1

    Manovikash Kendra Rehabilitation and Research Institute vs Prem Prakash Lodha [2005 (7) SCC 224] 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] 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.
  2. Order XXII Rule 3

    T.Chandrasekaran vs S.Kanagarajan [2007 (5) SCC 669] 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)] 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.
  3. 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] 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] 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] 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 and inexecutable.

    Shunkara Lakshmi Narasamma vs Sagi Subba Raju [2019 (1) LW 571(SC)] 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.
  4. Order XXII Rule 4(4)
    T.Gnanvel vs T.S.Kangaraj [2009 (14) SCC 294] Exemption to bring on record the legal heirs of the deceased defendant must be made before the judgment is pronounced.
  5. Order XXII Rule 5

    Chhabil Dass vs Papu [2006 (12) SCC 41] 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] 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)] 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 the list.

    Kathalingam vs Muniyandi Thevar Kovakkal and others [2019 (2) TNCJ 289] 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 decree-holder.

    Varadharajan vs Kanagavalli [2020 (2) LW 242 (SC)] 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 logical end.

    C.Naveen Kumar vs S.Chandrasekar [2020 (2) CTC 388] 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.
  6. Order XXII Rule 9

    Perumon Bhagawati Devaswon vs Bhargavi Amma [2008 (8) SCC 321] 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)
    1. the respondent had died during the period when the appeal has been pending without any hearing dates being fixed
    2. 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
    3. the appellant avers that he is unaware of the death of the respondent.
  7. Order XXII Rule 10

    Rakesh Kumar Gupta vs Ravindra Kumar Gupta [AIR 2009 (NOTES OF CASES) 2262] 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] Purchaser of the suit property during the pendency of the suit is a transferee pendente lite liable to be impleaded.
  8. 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] 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] 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.

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