Whether Motor Accident Claim Petition will Abate On Death Of Injured Claimant?

We are therefore in full agreement

with the view expressed by the learned Single Judge

of this Court in Gujarat State Road Transport

Corporation’s case (supra) that even after death of

the injured, the claim petition does not abate and

right to sue survives to his heirs and legal

representatives.”

Therefore, even after the death of the injured

claimant, claim petition does not abate and right to

sue survive to his heirs and legal representatives in

so far as loss to the estate is concerned, which

would include personal expenses incurred on the

treatment and other claim related to loss to the

estate. Under the circumstances, the issue referred

to the Division Bench is answered accordingly.

Consequently, it is held that no error has been

committed by the learned Tribunal in permitting the

heirs to be brought on record of the claim petition

and permitting the heirs of the injured claimant who

died subsequently to proceed further with the claim

petition. However, the claim petition and even

appeal for enhancement would be confine to the

claim for the loss to the estate as observed

hereinabove.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4800 OF 2021

The Oriental Insurance  Company Limited  Vs Kahlon @ Jasmail Singh Kahlon (deceased) 

AUTHOR: NAVIN SINHA, J.

Dated: AUGUST 16, 2021.

Citation: AIR 2021 SC 3913

MANU / SC / 0531 / 2021

( 2022 ) 13 SCC 494

[ 2021 ] 8 SCR 469

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What are tests for determining whether an appeal will abate as whole or partially?

The next question which arises is whether non-substitution of legal representatives of the deceased defendant Nos. 4, 8 and 9 has resulted in abatement of the appeal in its entirety or only qua the deceased defendants. In this regard it would be advantageous to refer to the decision in Budh Ram & Ors. vs. Bansi & Ors. MANU/SC/0565/2010 : 2010 (11) SCC 476 wherein after considering previous judgments on the issue the Apex Court has held thus:

"17. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.".

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 488 of 2017 

Decided On: 09.08.2019

 Yashwant Hari Parit  Vs.  Sunita Ashok Bhandare 

Hon'ble Judges/Coram:

Anuja Prabhudessai, J.

Citation: 2020(2) MHLJ 191

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Whether partition suit filed on behalf of minor will abate on his death?

 It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, action personal is moritur cum persona, But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it. That was the view taken in Rangasayi v. Nagarathnamma [1933] I.L.R. 57 Mad. 95 at pp. 137-138 and in Mandliprasad v. Ramcharanlal I.L.R. [1947] Nag. 848 at p. 871, and we are in agreement with it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 326 of 1955

Decided On: 04.09.1958

Kakumanu Peda Subbayya  Vs. Kakumanu Akkamma 

Hon'ble Judges/Coram:

A.K. Sarkar, P.B. Gajendragadkar and T.L. Venkatarama Aiyyar, JJ.

Author:T.L. Venkatarama Aiyyar, J.

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When court should dismiss whole appeal as abated if there is death of one of appellant?

We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the Defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the Appellant.

19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the Appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second Defendant. This is not a case where their claims were distinct claims. 

21. The decree, which the Appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the Defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed.

22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the Appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the Appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the Appellant invites the appellate court to pass. In such circumstances, the mere fact that the Appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent decree which emerges as a result of the failure to substitute legal representative of the late brother and the abating of the appeal filed by his late brother. Consequently, we see no merit in the appeal. It is accordingly dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4103 of 2008

Decided On: 07.05.2019

Hemareddi  Vs.  Ramachandra Yallappa Hosmani and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: (2019) 6 SCC 756

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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 right to sue will survive if plaintiff dies during pendency of appeal in defamation suit?

 Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

10. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.

11. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court, had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 91 of 1972

Decided On: 29.11.1985

Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair

Hon'ble Judges/Coram:

D.P. Madon and G.L. Oza, JJ.

Citation: (1986) 1 SCC 118.

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Whether execution application will abate if legal heirs of judgment debtor or decree holder are not brought on record within limitation?

If during, the pendency of a regular execution proceeding filed on the basis of a decree or order of a Civil Court, the decree holder or the judgment debtor dies and his legal representatives are not brought on record within ninety days, can the Civil Court dismiss the execution petition as abated?

12. Order 22 Rule 12 of the CPC reads as follows:

"Order 22 Rule 12: Application of order to execution proceedings'. Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."

13. In other words the normal principle arising in a suit - before the decree is passed - that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree holder or the judgment debtor in execution proceedings.

14. In Venkatachalam v. Ramaswami, ILR (1932) Mad. 352 : AIR (1932) Mad. 73, a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Courts and says:

"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."

15. In our opinion, the above statement of law in Mulla's Commentary on the CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the Civil Court.

16. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the CPC.

IN THE SUPREME COURT OF INDIA

S.L.P. (C) No..../1998 (CC 1802)

Decided On: 18.02.1998

V. Uthirapathi Vs. Ashrab Ali and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M. Jagannadha Rao, JJ.

Citation:AIR 1998 SC 1168.

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Whether Injunction decree will survive to legal heirs of deceased plaintiff?

Therefore, the question in this second appeal is whether the injunction obtained by the plaintiff against the defendants would be rendered nugatory on the death of the plaintiff.

8. There is a distinction between the death of the plaintiff and the death of the defendant. The injunction is operative against the defendants. In fact, the model form of prayers in many suits for injunction would be "restraining the defendants or his men or servants or agents or anybody claiming under or through him". Therefore, on the death of the defendant, all these persons would vanish. Consequently, the question of binding the L.Rs of the defendant by such injunction would not arise. But this will not be the case, if the plaintiff who seeks injunction dies, A decree for injunction obtained by the plaintiff can be succeeded to by his L.Rs and such a right of injunction does not die with the plaintiff. I am fortified in my view by the dictum rendered by the High Court of Allahabad in Krishna Behari Goel v Raj Mangal Persad and Others, which is in the following passage:

"(5) The suit was not of a personal nature at all. Sukhu did not claim any personal right. The injunction sought was that the applicant should not interfere with his possession over the property in dispute. A suit claiming injunction of this nature did not abate on the death of the plaintiff. The cause of action survived to his legal representative who came in possession of the property in dispute".

This position stands further clarified by the leading case of Penn v Lord Baltimore, wherein Lord Chancellor Hardwicke stated in effect as follows:

"The strict primary decree in this Court, as a Court of Equity, is in personam, .....until the defendant do comply with the order of judgment of the Court, which is against himself the defendant personally to do or cause to be done or to abstain from doing some act".

The italicized portion indicates that it is a personal against the defendant against whom injunction is sought for. Therefore, the decree of injunction would become infructuous on the death of the defendant or the party against whom injunction is granted. The person who gets an injunction were to die, certainly his L.Rs will be entitled to the benefit of the decree.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Regular Second Appeal No. 132 of 1993

Decided On: 12.01.1998

Venkubai  Vs The Assistant Commissioner, Sedam, Gulbarga District and Ors.

Hon'ble Judges/Coram:

T.N. Vallinayagam, J.

Citation: 1999(1) Civil Court Cases 119 Kant

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Whether case against Hindu undivided family will abate on death of its Karta?

The matter can be looked at from another point of view also. Rule 10, Order 30. Civil P.C. provides that a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under Order 30 shall apply accordingly. Rule 4 of Order 30. Civil P.C. provides that notwithstanding anything contained in Section 45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such person dies, whether before the institution or during the pendency of any suit, it shall not be necessary to joint the legal representatives of the deceased as a party to the suit. It is not disputed that Messrs. Rai Bahadur Kishore Chand and Sons was a Joint Hindu family concern and had been sued through its Karta, Rai Bahadur Kishore Chand. In view of the said provision of Rule 4. on the death of the Karta, it was not necessary to bring on record his legal representatives because the joint Hindu family concern continues to be a party in spite of the death of the Karta. So the question of the abatement of the appeal did not arise and the name of the new Karta could be impleaded as a party any time. It is therefore, not possible to sustain the view of the learned single Judge that the appeal had abated on the death of Rai Bahadur Kishore Chand, the Karta of the joint Hindu family concern and the impugned judgment is accordingly reversed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 21.03.1983

 Shila Wanti  Vs. R.B. Kishore Chand and Ors.

Hon'ble Judges/Coram:

S.S. Sandhawalia, C.J. and Satya Parkash Goyal, J.

Citation: AIR 1984 P& H 35

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Whether court should dismiss appeal in entirety if there is death of some of defendants?

 Order 22 Rule 4, CPC lays down that where within the time
limited by law, no application is made to implead the legal
representatives of a deceased defendant, the suit shall abate as
against a deceased defendant. This rule does not provide that by
the omission to implead the legal representative of a defendant,
the suit will abate as a whole. If the interests of the codefendants
are separate, as in the case of coowners,
the suit will
abate only as regards the particular interest of the deceased
party. In such a situation, the question of the abatement of the
appeal in its entirety that has arisen in this case depends upon
general principles. If the case is of such a nature that the
absence of the legal representatives of the deceased respondent
prevents the court from hearing the appeal as against the other
respondents, then the appeal abates in toto. Otherwise, the
abatement takes place only in respect of the interest of the
respondent who has died. The test often adopted in such cases
is whether in the event of the appeal being allowed as against the
remaining respondents there would or would not be two
contradictory decrees in the same suit with respect to the same

subject matter. The court cannot be called upon to make two
inconsistent decrees about the same property, and in order to
avoid conflicting decrees the court has no alternative but to
dismiss the appeal as a whole. If on the other hand, the success
of the appeal would not lead to conflicting decrees, then there is
no valid reason why the court should not hear the appeal and
adjudicate upon the dispute between the parties. In the matter
on hand, the absence of certain defendants who have been
deleted from the array of parties along with the absence of legal
representatives of a number of deceased defendants will prevent
the court from hearing the appeals as against the other
defendants. We say so because in the event of these appeals
being allowed as against the remaining defendants, there would
be two contradictory decrees in the same suit in respect of the
same subject matter. One decree would be in favour of the
defendants who are deleted or dead and whose legal
representatives have not been brought on record; while the other
decree would be against the defendants who are still on record in
respect of the same subject matter. The subject matter in the
suit is the validity of the two Wills. The Courts including the
Division Bench of the High Court have consistently held that the

two Wills are proved, and thus Veeraswamy being the beneficiary
under the two Wills had become the absolute owner of the suit
properties in question. Such decree has attained finality in favour
of the defendants who are either deleted or dead and whose legal
representatives have not been brought on record. In case these
appeals are allowed in respect of the other defendants, the decree
to be passed by this Court in these appeals would definitely
conflict with the decree already passed in favour of the other
defendants. As mentioned supra, the Court cannot be called
upon to make two inconsistent decrees about the same subject
matter. In order to avoid conflicting decrees, the Court has no
alternative but to dismiss the appeals in their entirety (see the
judgment of this Court in the case of Shahazada Bi vs. Halimabi,
(2004) 7 SCC 354).

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 43804382
OF 2016

SUNKARA LAKSHMINARASAMMA  Vs SAGI SUBBA RAJU & OTHERS ETC
MOHAN M. SHANTANAGOUDAR, J.
Dated:NOVEMBER 28, 2018.

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Whether successor trustee should make application for bringing him on record within limitation?

However, even if it is assumed that the present case is governed by Order 22 Rule 10 of the Code, the question still remain, whether the application made by the new trustee would be governed by any period of limitation. Even though, Shri Kherdekar appearing for the respondents before the learned single Judge had submitted that such an application would be governed by Article 181 of the Indian Limitation Act, 1908, he has very fairly conceded before us that such an application would not be governed by any period of limitation, It is not, therefore, necessary to decide this point in this appeal. However, in Baijnath Ram v. Mt. Tunkowati MANU/BH/0076/1962 : AIR1962Pat285 Full Bench of the Patna High Court held that unlike Rules 3 and 4, of O.22, no limitation is prescribed for presentation of an application under Order 22 Rule 10, and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved and hence the right to make an application under the latter rule is a right which accrues from day to day and can be made at any time during the pendency of a suit and there is no abatement under that rule. A similar view has been taken by a Single Judge of the erstwhile Nagpur High Court in C. Wright Neville v. E. H. Freser MANU/NA/0101/1943. It would, therefore, appear that once It is held that the application is governed by O. 22 Rule 10 of the Code, then such an application could be made at any time during the pendency of the suit or appeal, but while granting leave to the applicant to proceed with the suit or appeal, the Court would consider the question on merits. However, the application cannot be thrown out simply because it is not made within a particular period,

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 7 of 1971

Decided On: 24.04.1978

 Sitabai Ramchandra Jaltare  Vs.  Masjid Nurun Mohalla Jingerwadi

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Whether legal heirs of trustees are to be brought on record on death of trustee if suit was brought on behalf of trust?

 The first question which falls for consideration is whether the application which was made by Adbul Majid before the learned District Judge was governed by Rule 3 of Order 22 as held by the learned District Judge or by Rule 10 of Order 22, as held by the learned Single Judge. Relying on certain decisions referred to by him in his judgment, the learned District Judge was of the view that Order 22 Rule 10 is a residuary rule governing only those cases which are not provided for by the preceding rules and where devolution takes place by reason of death, the matter falls under Rule 4 where the death is of the defendant and Rule 10 will have no application to such a case. The learned District Judge was of the view that Rule 10 is an enabling one but not a device intended to get over the laches of the parties bound to move under Rule 3 or Rule 4. It appears that the learned District Judge was of the view that Order 22 Rule 10 will not apply to a case where the plaintiff or defendant dies and the suit has to be continued by other persons. The learned District Judge was of the view that in case of death of the plaintiff or the defendant, as the case may be. the proper provision to be applied would be Rule 3 or R. 4 of O. 22 and not Rule 10. It was in this view of the matter that the learned District Judge held that the present case was governed by Order 22 Rule 3 of the Code and not by Order 22 Rule 10. Having held so, the learned District Judge further found that the legal representative of Awaliyabi should have been brought within 90 days from her death and since this has not been done, the appeal had abated.

7. As already seen the learned Single Judge differed from the learned District Judge with regard to the application of Order 22 Rule 3 to the present case. The learned Single Judge observed that Order 22 Rule 3 would apply only if on the death of the plaintiff the suit is to be continued by the legal representatives of the plaintiff but not to the case where the plaintiff was a trustee. According to him, on the death of the plaintiff, who filed the suit in his capacity as a trustee, or his resignation or otherwise ceasing to be trustee, the person, who could continue the suit would not be his personal legal representative but another trustee of the said trust. The learned single Judge observed that Awaliyabi had not filed the suit in her personal capacity and hence there could not be any question of her personal legal representatives continuing it and it could be continued by another representative of the trust, in our opinion, the view taken by the learned single Judge, with respect, appears to be laying down the law correctly in this respect. In Thirumalai v. Arunachella MANU/TN/0398/1925 : AIR1926Mad540 , the appeal was filed by nine trustees. But during the pendency of the appeal two of them died and one retired. It appears that an application was made for bringing on record the trustees who had been appointed in place of one of them who had expired and the other who had retired. This application had been filed beyond the period of 90 days from the death of one of trustees and from the date of retirement of the other. It was contended that the new trustees, who had been appointed in place of the above said two trustees were their legal representatives within the meaning of clause (11) of S. 2 of the Code and hence the application not being filed within the prescribed time, could not be entertained. On these facts it was held that the new trustees were not legal representatives of those who had died or retired and it was held that the application for bringing the new trustees on record would fall under Order 22 Rule 10, because the interest of the deceased trustees devolved on these persons by the act of the electors done in pursuance of the scheme framed by the Court and it was a case of devolution of interest during the pendency of the suit. In Keshab Rai v. Jyoti Prosad MANU/WB/0345/1932 : AIR1932Cal783 a Division Bench of the Calcutta High Court held that Rules 2, 3 and 4 of Order 22 of the Code relate to cases of devolution in interest on the death of a plaintiff or defendant when such plaintiff or defendant was suing or was being sued respectively in his personal capacity, that these rules do not apply when a suit is brought by or against a person in his representative character and to such a suit the provisions of Order 22 Rule 10 of the Code will be applicable. Again in Kishori Lal v. The Collector ILR (1955) All 128 a Division Bench of the Allahabad High Court held that Order 22 Rule 4 of the Code is applicable to those cases where a person who is brought on the record as legal representative inherits the property from the deceased party, but where a person is brought on the record as legal representative in order to represent an estate which was formerly represented in a suit by another person, Order 22 Rule 10 of the Code will apply. Lastly in Roshan Lal v. Kapur Chand MANU/PH/0085/1960 a Division Bench of the Punjab High Court has held that where a suit is brought by trustees and some of them die during the pendency of the suit, the new trustees can be added as parties under Order 22 Rule 10 of the Code and newly appointed trustees are not representatives of the deceased trustees within the meaning of Order 22 Rule 3. 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 representative would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of S. 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 representative 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. Obviously, therefore, when a suit is filed by a person in his capacity as a trustee or representing a trust or any interest and if he dies, the suit can- not be continued by his own legal representatives but will have to be continued by another trustee or a person who is appointed or elected to manage the trust. In short, therefore, interest as a trustee will not devolve on a new trustee because of the death of the previous trustee but because of his being elected or appointed as such, Now obviously such a case will not be covered by Order 22 Rule 3, which contemplates 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, In this view of the matter, therefore, it is not possible to say that the conclusion to which the learned single Judge has arrived is not correct.

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 7 of 1971

Decided On: 24.04.1978

 Sitabai Ramchandra Jaltare  Vs.  Masjid Nurun Mohalla Jingerwadi

Hon'ble Judges/Coram:

M.D. Kambli and A.A. Ginwala, JJ.

Citation: 1978 MHLJ 789 bom

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Whether abatement of final decree proceeding is set aside if court has permitted prayer for bringing legal heirs on record?

In my considered opinion, having regard to the fact that the present proceedings are, though not the execution proceedings in a strict sense of the term, even then, they are the Final Decree proceedings, in which the shares of the parties in a Partition Suit are determined and partitioned. In such situation, when during the pendency of that proceeding, husband of the Petitioner has expired, then, as held by the Apex Court in the above-said Judgment, the Trial Court should not have adopted such a technical approach of insisting on the application for setting aside the abatement. The very fact that the Applicant was seeking her impleadment in the proceedings as legal heir of her husband, indirectly, represents that she was also requesting for setting aside the abatement, if any has occurred, against her husband. Hence, the impugned order passed by the Trial Court, by adopting the technical approach of insisting on separate application for setting aside the abatement, needs to be set aside; considering the legal position enunciated above, the nature of litigation itself and the fact that such application was filed in the Final Decree proceedings.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 57 of 2016

Decided On: 28.02.2018

 Anuradha Vasantrao Ghorpade Vs. Sayajirao Tatyasaheb Ghorpade and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.
Citation: 2018(3) MHLJ 687

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Whether execution proceeding will abate if there is death of decree holder or judgment debtor?

If during, the pendency of a regular execution proceeding filed on the basis of a decree or order of a Civil Court, the decree holder or the judgment debtor dies and his legal representatives are not brought on record within ninety days, can the Civil Court dismiss the execution petition as abated?

12. Order 22 Rule 12 of the CPC reads as follows:

"Order 22 Rule 12: Application of order to execution proceedings'. Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."

13. In other words the normal principle arising in a suit - before the decree is passed - that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree holder or the judgment debtor in execution proceedings.

14. In Venkatachalam v. Ramaswami, ILR (1932) Mad. 352 : AIR (1932) Mad. 73, a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Courts and says:

"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."

15. In our opinion, the above statement of law in Mulla's Commentary on the CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the Civil Court.

16. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the CPC.

IN THE SUPREME COURT OF INDIA

S.L.P. (C) No..../1998 (CC 1802)

Decided On: 18.02.1998

 V. Uthirapathi Vs. Ashrab Ali and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M. Jagannadha Rao, JJ.

Citation: AIR 1998 SC 1168

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Whether appeal will abate as a whole if legal heirs of respondent no 2 is not brought on record?

 Reverting to the present case, the claim for damages (excluding the damages for Rs. 6 lakhs, which are separately claimed against the defendant No. 2), is made jointly and severally against both the defendants. The claim is based on the ground that the defendant Nos. 1 and 2, reproduced the drawings and submitted the drawings to the NGPDA, which is an infringement of the copyright of the plaintiff, in the said drawings. It can thus be seen that the claim for damages, is joint and several against the defendant Nos. 1 and 2. It is on the basis of a claim that the defendant Nos. 1 and 2 by their joint act have infringed the copyright of the plaintiff. The Trial Court has dismissed the suit holding that there is no breach/infringement of any copyright. In appeal the legal representatives of the respondent No. 2 (defendant No. 2), have not been brought of record and thus, the Appeal has abated as against the respondent No. 2. The question is whether, this would result in abatement of the appeal as a whole and in my view, the answer has to be in the affirmative. This is because the decree which is challenged is "joint and inseverable". The defendant No. 1 or for that matter, defendant No. 2 were not capable of committing the alleged infringement on his own. The submission of the drawings/plans to the NGPDA required the services of an Architect to be engaged by the owner. The owner cannot submit such drawings on his own and thus, independently they were-in-capable of committing the infringement of the copyright as claimed by the plaintiff. The matter can be looked at, from another angle. For instance, if these appeals were to be allowed, it would result into two decrees, which would be in-congruent or contradictory in nature. While the decree against the defendant No. 2 holding that defendant No. 2 has not committed any infringement of the copyright, would subsist (as the appeal as against respondent No. 2 has abated), there would be a decree holding that the defendants have committed infringement of the copyright. Therefore, in my considered view, the appeals shall abate as a whole on account of the failure of the appellant to bring the legal representatives of the respondent No. 2 on record. The point is accordingly answered in the affirmative.

IN THE HIGH COURT OF BOMBAY AT GOA

First Appeal Nos. 221, 222 and 223 of 2007

Decided On: 19.07.2017

 Architect Bruno Dias Souza Vs. Gustavo Renato Pinto and Ors.

Hon'ble Judges/Coram:

C.V. Bhadang, J.

Citation: 2017(6) MHLJ 542

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Whether order of abatement can be altered at subsequent point of time?

Needless to mention that the order of abatement is not so sacrosanct or inviolable that the same cannot be altered at a subsequent point of time inspite of sufficient cause being shown by the plaintiffs or any other party to the suit. If the party to the suit is able to satisfy the Court that the requirements of Rule 4A or Rule 4(4) are attracted in a given case then the Court may in its inherent powers pass appropriate orders including an order of setting aside abatement on such ground. If the aforesaid rules permit prosecution of the suit in absence of legal representatives of the deceased party, and yet the judgment passed would bind the estate of such deceased party, then surely it would be preposterous to contend that suit against such a person would abate in law. Both these situations would be antithesis to each other. In my view it would defeat the legislative intent behind the Amendment Act of 1976.

11. Understood thus, the Court below ought to examine the subject application in wider perspective. In such a situation, to do substantial justice to the parties the Court ought to exercise inherent powers under section 151 of the Code of Civil Procedure and pass appropriate orders. Incase defendants 2 to 5 are justified in contending and there is material on record to support the contention that they were the heirs of deceased Pragji and could represent the estate of the defendant No. 1 the Court could suitably modify the abatement order and permit the defendants 2 to 5 to represent the estate of defendant No. 1. All questions are left open to be decided by the Trial Court. The Court may re-examine the application in the wake of observations made hereinbefore and decide the same in accordance with law.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6294 of 1995

Decided On: 28.06.2001

Gulabben wd/o Chimanlal Maniar and Ors. Vs. Narendra Balchandra and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 Vol 103(4) BOM L R 540

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Supreme Court: Whether the court can permit setting aside of abatement of suit or appeal even in absence of specific application in that regard?

In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abateed, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

The courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule(l) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.

In the present case, the learned trial judge found sufficient cause for consideration of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. 

In Maria Flaviana Almeida & Ors. 's case (supra), Chief Justice Beaumont speaking for the Division Bench observed that an order setting aside an abatement is really one in procedure. The party originally had a cause of action which through no fault of their own came to an end by the death of their opponent and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition. The Division Bench held that the order setting aside an abatement does not effect the merits of the dispute between the parties though it certainly determines a right and, therefore, does not amount to a 'judgment'.

Supreme Court of India

Mithailal Dalsangar Singh And Ors vs Annabai Devram Kini And Ors on 16 September, 2003

Bench: R.C. Lahoti, Ashok Bhan
Citation: 2003 Supp(3) SCR 822 

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Whether legal representatives of defendant who died prior to filing of suit can be added as party to suit?

As mentioned supra, it is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 Under Order 1 Rule 10 of the Code, for the simple reason that the Plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the Plaintiff Under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.

15. Having regard to the totality of the narration made supra, there is no bar for filing the application Under Order 1 Rule 10, even when the application Under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties Under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated Under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 15549 of 2017 (Arising out of SLP (C) No. 31212 of 2014)

Decided On: 03.10.2017

Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased) 

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

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Whether order bringing legal representatives on record would enure for subsequent stages of suit?

Let us now consider the question on principle. A combined reading of Order XXII, Rules 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said Rules 3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent" have to be read in those rules. Prima facie, therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under r. 4, read with r. 11, of O. XXII of the Code of Civil Procedure. But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently remanded to the trial Court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial Court's order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellant order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit.

13. But the same legal position cannot be invoked in the reverse or converse situation. A suit is not a continuation of an appeal. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom; but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly become an order in the appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. We, therefore, hold that the appeal abated so far as the 7th respondent was concerned.

IN THE SUPREME COURT OF INDIA

Civil Miscellaneous Petition Nos. 2402 of 1964

Decided On: 01.03.1965

Rangubai Kom Shankar Jagtap Vs.  Sunderabai Bhratar Sakharam Jedhe and Ors.

Hon'ble Judges/Coram:

J.C. Shah, K. Subba Rao and R.S. Bachawat, JJ.

Citation:(1966)1 SCA 29,68 BOM LR 26

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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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