Whether a person added in proceeding as legal representative is entitled to get right in suit property?

 Even otherwise an order determining in an inquiry under this Rule that a person is a legal representative is confined to the proceedings to enable the claimant to proceed with or continue the suit or appeal as the case may be. It does not confer or recognise heirship. The fact that the order mentions a person to be a legal representative does not confer on an intermeddler any right, title or interest in the deceased's estate. It only empowers him to continue the suit or appeal as the case may be.

14. Here it shall be apposite to refer to the observations made by the Hon'ble Supreme Court in Jaladi Suguna vs. Satya Sai Central Trust MANU/SC/7614/2008 : (2008) 8 SCC 521 wherein it was held as under:

"10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-à-vis. other rival claimants to the estate of the deceased."

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

R.S.A. No. 652 of 2005

Decided On: 08.03.2019

Raman Kumar Vs.  Narain Dev 

Hon'ble Judges/Coram:

Tarlok Singh Chauhan, J.

Citation: AIR 2019 HP 70

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Whether O 22 of CPC is applicable to proceeding before motor accidents claim tribunal?

Claim petition-Abatement-Death of driver-cum-owner of vehicle during pendency of claim petition-shall not be bar to survival of cause of action arising out of accident against his assets and his insurer-O 22 of cpc is not applicable to proceeding before motor accidents claim tribunal-Claim petition would not abate on ground of death on ground of death of owner.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No.

17 of 2008

United India Insurance Company Limited Vs Smt. Brijbala & others

Decided on: 20.03.2015

Coram

The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

Citation;AIR 2015 Himachal Pradesh34

Read full judgment here: Click here

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Whether legal representatives who are impleaded alone are entitled to inherit entire subject matter of litigation?

 I am also of the view that if in a suit a few persons are impleaded as legal representatives, it does not mean that they alone are entitled to inherit the entire subject-matter of the litigation. The legal representatives are brought on record to represent the estate of the deceased. The question of inheritance is not decided and it is only a question of representation of estate which is decided under Order 22 of the CPC. Therefore, a person who represents the estate acts on behalf of the entire body of people who inherit the estate. As such, when after the death of Smt. Rajeshwari Rani Pathak, Dr. S.K. Sharma was impleaded as her legal representative, he represented the estate of the deceased late Smt. Rajeshwari Rani Pathak and it was not decided that he was the sole heir.

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 17.05.2007

State of H.P. Vs. Smt. Annapurna Pathak and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: AIR 2007 HP 88

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Whether court can impose condition to implead legal heirs while staying subsequent suit?

 The basic purpose of this section is to protect a person from multiplicity of proceedings as also to avoid conflict decisions. Section 10 CPC is an independent provision. The same is untrammeled by any provision of CPC. Provisions of Section 10 and Order 22 Rules 3 & 4 CPC operate in different field. They embrace the fields which are covered by the conditions embodied therein. The provisions of Order 22 CPC do not in any way circumscribe or limit the operation of Section 10 CPC. If the conditions enumerated in Section 10 CPC are satisfied, then the Court shall stay the further proceeding of the suit. Whether the suit will fail or abate, it is not the determining factor for deciding the application u/s. 10 CPC. While deciding the application u/s. 10 CPC, the Court cannot impose any condition.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 987 of 2014

Decided On: 05.12.2018

 Binapani Jethi  Vs. Bijay Kumar Jethi and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

Citation: AIR 2019 Orissa 17

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Whether suit filed by trust will abate if legal heirs of trustees are not brought on record?

 However, the Division Bench in Letters Patent Appeal held that "It would, therefore, appear that it is well settled that Order 22, Rule 3 of the Code applies to cases where the plaintiff leaves behind the estate which could be inherited by his heirs or successors and if they are brought on record, then the provisions of Order 22, Rule 3 will apply. However, the case would be different where the suit is brought by the plaintiff not in his personal capacity but in his representative capacity as a trustee or otherwise. In that case when he dies, his own legal representatives would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of section 2 of the Code. Only those trustees who are elected or appointed under the scheme of the trust can step in his shoes and continue the suit. Such a new trustee could not by any stretch of imagination be said to be legal representatives of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the scheme of the trust... Now obviously such a case will not be covered by Order 22, Rule 3, which contemplated the legal representatives of the deceased plaintiff being brought on record. Since the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the provisions of Order 22, Rule 3 of the Code. Obviously such a case would be covered by Rule 10 of Order 22 of the Code." It was further held that unlike Rule 3 of Order 22, no limitation is prescribed for presentation of application under Rule 10 and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant devolves and hence the right to make an application under the latter rule is right which accrues from day to day and can be made at any time during the pendency of the suit and there is no abatement under that rule. Considering the ratio of this judgment, it is clear that in the present case, the provisions of Order XXII, Rule 10 shall be attracted and, therefore, even though application was made for substitution after 9 months (though the learned Judge wrongly observed as one year and 3 months), there can be no abatement. It is not the case where the legal representatives of the deceased respondent No. 4 are to be brought on record but the trustee who is recognised by the Charity Commissioner is to be brought on record. This would happen not only in the case of death but even in the case of retirement or resignation of the trustee. In all these cases, substitution is required to be made and which can only be made under Order XXII, Rule 10. Hence, in my opinion, the learned Judge was not right in holding that the suit abated. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 535 of 1975

Decided On: 22.02.1993

 Abaji Daulata Yadav  Vs. Dhondiram Jagedevrao Yadav and Ors.

Hon'ble Judges/Coram:

P.S. Patankar, J.

Citation: 1994(3) Bom CR 60, 1993 MHLJ 588

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When court will permit bringing legal heirs of deceased on record after ninety days of receipt of report of his death?

Albeit the provisions of Code of Civil Procedure do not ipso facto apply to the proceedings before the Rent Control Tribunal constituted under the Rajasthan Rent Control Act, 2001, yet principles enumerated therein have to be applied for reasons of justice, equity and good conscience. Order 22 Rule 10A CPC mandates that on the death of a defendant/respondent before the trial Court/appellate Court, it is incumbent upon his counsel to inform the concerned Court with regard to the factum of the death of the defendant/respondent and also detail the legal representatives of the deceased such that they could be brought on record to continue with the proceedings before the concerned Court. In the present case, even though Mool Chand apparently expired on 19.08.2008 during the pendency of the trial of the eviction petition itself, no information was supplied by his counsel of his death to the Tribunal and counsel continued to represent Mool Chand before the Rent Tribunal. In the meantime, the trial was concluded and the plaintiff's eviction suit dismissed. Consequently, the plaintiff filed an appeal before the Appellate Rent Control Tribunal against the dismissal of the suit vide judgment dt. 28.04.2011 passed by the Rent Control Tribunal impleading the original defendants in the eviction suit as respondents in the appeal. It was only on 14.10.2011 when efforts were made to serve Mool Chand, he was found to have expired. This fact came to the notice of the plaintiff on 14.10.2011 as per report of the process server on the appeal file. Within 90 days therefrom, the substitution application under Order 22 Rule 4 read with Section 151 CPC was filed.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Revision Petition No. 67/2013

Decided On: 02.12.2013

 Ramu  Vs.  Daulat Motiyani

Coram:

Alok Sharma, J.

Citation:AIR 2014(NOC)259 Raj

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What will be effect of insolvency of party in civil suit and in execution of decree?

Order XXII of the Code of Civil Procedure deals with the consequences of death, marriage or insolvency of parties to the proceedings before Court. I do not know whether it was the intention of the law makers to place death, marriage and insolvency on the same footing and whether the placement of all of them under one Order was actually a reflection of such an intention.

21. Be that as it may, the effect of Rules 1 to 12 of Order XXII, can be summarised as under:

(a) The death of a plaintiff or a defendant will not cause the suit to abate if the right to sue survives.

(b) If there are more plaintiffs than one or more defendants than one and one of them dies, with the right to sue surviving upon the other plaintiffs or defendants, the Court has to simply make an entry to that effect and proceed with the suit.

(c) If one of the several plaintiffs dies and the right to sue does not survive on the surviving plaintiffs alone, then, the legal representatives of the deceased plaintiff have to be brought on record, on an application made in that behalf. The same procedure applies where a sole plaintiff dies and the right to sue survives.

(d) If an application to bring on record the legal representatives of the deceased plaintiff is not made within the time prescribed by the law of limitation, then the suit will abate so far as the deceased plaintiff is concerned.

(e) If one of the several defendants dies and the right to sue does not survive against the surviving defendants alone, then, the legal representatives of the deceased defendant have to be brought on record, on an application made in that behalf. The same procedure applies where a sole defendant dies and the right to sue survives.

(f) If an application to bring on record the legal representatives of the deceased defendant is not made within the time prescribed by the law of limitation, then the suit will abate as against the deceased defendant.

(g) However, the Court has a discretion to exempt the plaintiff from the necessity of substituting the legal representatives of a deceased defendant, if such defendant had failed to file a written statement or if he had failed to appear and contest the suit at the time of hearing.

(h) The Court has the power under Section 5 of the Limitation Act, 1963 to condone the delay in seeking to set aside the abatement caused due to the death of the defendant, if the plaintiff shows that he was ignorant of the death of the defendant and that as a consequence, he had sufficient cause for not making an application for substitution of the legal representatives, within the time prescribed.

(i) If a party who died during the pendency of the suit, had not left behind any legal representative, the Court may proceed further without any one representing the estate of the deceased. Alternatively, the Court may appoint the Administrator General or an Officer of the Court to represent the estate of the deceased.

(j) The Court has the power to decide the question whether any person is or is not the legal representative of a deceased plaintiff or defendant. If such question arises before an appellate Court, the appellate Court may direct the subordinate Court to try the question and record a finding and send it to the appellate Court.

(k) If the death of either party to the suit occurs, after the conclusion of the hearing, but before the pronouncement of the judgment, there will be no abatement, irrespective of whether the cause of action survives or not. Consequently, the Court can proceed to pronounce the judgment.

(l) A suit shall not abate, merely on account of the marriage of a female plaintiff or defendant. A decree in favour of the wife can be executed on an application filed by the husband, if he is by law entitled to the subject matter of the decree. Similarly, if the husband is liable by law, for the debts of his wife, the decree against the wife can also be executed against the husband, with the permission of the Court.

(m) A suit which is maintainable by an assignee or receiver, for the benefit of the creditors of a plaintiff, will not abate on account of the insolvency of the plaintiff, unless the assignee or receiver declines to continue.

(n) If a suit abates or is dismissed under Order XXII, no fresh suit shall be brought on the same cause of action.

(o) The plaintiff or the person claiming to be his legal representative can seek to set aside the abatement or dismissal, by showing sufficient cause. The Court has the power to condone the delay in filing such applications.

(p) If there is assignment or creation of devolution of any interest, during the pendency of a suit, the suit may be continued by or against the person to or upon whom such interest has devolved. But, it shall be done with the leave of the Court.

(q) A pleader appearing for a party to the suit, has a duty to inform the Court about the death of his client, if he comes to know about the death. Thereafter, the Court is obliged to give notice of such death to the other party.

(r) The provisions of Order XXII are applicable to appeals. While so applying, the words "plaintiff", "defendant" and "suit" shall be taken to include the words "appellant", "respondent" and "appeal".

(s) The provisions of Rules 3, 4 and 8 of Order XXII, are not applicable to proceedings in execution of a decree or order. In other words, (i) the obligation under Rule 3 to bring on record the legal representatives of the deceased plaintiff; (ii) the obligation under Rule 4 to bring on record the legal representatives of the deceased defendant; and (iii) the consequences of the insolvency of a plaintiff indicated in Rule 8, are not applicable to the proceedings in execution of a decree.

22. A reading of Rules 1 to 12 of Order XXII would show that the provisions of Order XXII, primarily concern suits. Rule 11 gives a positive indication that all these provisions are also applicable to appeals. Rule 12 gives an indication, though in a negative form, that all the provisions of Order XXII, except those under Rules 3, 4 and 8, are applicable to proceedings in execution of a decree or order.

Madras High Court

Ayisha Beevi vs Sheik Mydeen on 23 December, 2011

Coram
The Honourable Mr.Justice V.RAMASUBRAMANIAN

Civil Revision Petition (NPD)(MD) No.1123 of 2006

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