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Andhra Pradesh High Court
Judges : P.A.CHOUDHARY
Vantaku Appalanaidu - Appellant
Versus
Peddinti Demudamma - Respondent
Decided On : 11-19-81
ABATEMENT - DEATH OF SOLE APPELLANT - EFFECT ON APPELLATE PROCEEDINGS - ORDER 22, RULES 1, 3 AND 6, CIVIL PROCEDURE CODE, 1908 - INTERPRETATION - DECREE PASSED BY APPELLATE COURT BEFORE EXPIRY OF LIMITATION PERIOD FOR BRINGING IN LEGAL REPRESENTATIVES - VALIDITY.
Fact of the Case:
The sole plaintiff in a partition suit died during the pendency of an appeal against the dismissal of the suit by the trial court. The appellate court, unaware of the plaintiff's death, allowed the appeal and decreed the suit. The judgment debtors filed a second appeal, contending that the decree was a nullity as the suit had abated with the death of the plaintiff.
Finding of the Court:
The court held that the decree passed by the appellate court was not a nullity. It held that Order 22, Rule 1 of the Civil Procedure Code, 1908 (CPC) alters the earlier rule of automatic abatement resulting from death and provides that the death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives. The court further held that Order 22, Rule 3(1) CPC, which directs the court to bring the legal representatives of the deceased plaintiff on record and to proceed with the suit, is directory and not mandatory in an appeal where no further evidence is called for.
Issues: 1. Whether the decree passed by the appellate court after the death of the sole appellant was a nullity. 2. Whether Order 22, Rule 3(1) CPC is mandatory or directory in an appeal where no further evidence is called for.
Ratio Decidendi: 1. The court held that the decree passed by the appellate court was not a nullity because: (a) Order 22, Rule 1 CPC alters the earlier rule of automatic abatement resulting from death and provides that the death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives. (b) Order 22, Rule 3(2) CPC provides that the suit abates only on the expiry of the time allowed by the statute for bringing the legal representatives of the plaintiff on record. (c) The proceedings of the court recorded during that period cannot be regarded as null and void on the ground that the suit has abated. 2. The court held that Order 22, Rule 3(1) CPC is directory and not mandatory in an appeal where no further evidence is called for because: (a) The purpose of Order 22, Rule 3(1) CPC is to fulfil the need to bring the parties before the court, which is essential in an adversary system of justice. (b) In an appeal, where normally no oral trial takes place and no fresh evidence is taken, the requirement of presence of the appellant is only of minimal importance and is not so vital for the hearing of an appeal, as the presence of a plaintiff undoubtedly would be to proceed with the trial of a suit.
Final Decision: The court dismissed the second appeal with costs and directed the lower court to pass a final decree within two months and to execute the decree within six months from the date of receipt of the order.
( 1 ) THIS second appeal arises out of a judgment and decree passed by District Judge, Vizag in A. S. No. 156/77 confirming an order of the District Munsifs Court, Chodavaram, passed in I. A. No. 102/76 in O. S. 93/70, in the court of the District Munsif, Chodavaram, the aforesaid I. A. No. 102/76 was filed by the present respondents under Order 26, Rule 30 of the Civil Procedure Code, praying that they might be brought on record as the legal representatives of the deceased-plaintiff in O. S. No. 93/70 D. M. C. Chodavaram, and a final decree might be passed against the present appellants who were the judgment debtors in the aforesaid suit. The present appellants opposed that I. A. 102/76. But both the courts below granted the relief to the present respondents. The defendants judgment-debtors filed this second appeal complaining against the orders of the District Judge.
( 2 ) O. S. No. 93/70 on the file of the District Munsif, Chodavaram, was filed by the sole plaintiff for partition and separate possession of 1/4th share of the plaint schedule properties. To that suit, the present appellants wee added as the defendants. On context that suit was dismissed by the learned District Munsif on 30-6-71. The sole plaintiff appealed against that decree to the District Judge, Vizag in A. S. No. 201/74. Pending hearing of his appeal, the appellant dies on 2-10-75. But neither the appellants lawyer nor the respondents lawyer brought that fact of the plaintiffs death to the notice of the District Judge, Vizag presumably for the reason they did not themselves know about it. The Dist. Court, acting in ignorance of the fact of the sole appellants death, heard the arguments of the lawyers on either side on 3-10-75 and delivered his judgment on 10-10-75 allowing the plaintiffs appeal and decreeing the suit for partition and separate possession. Accordingly, a preliminary decree was drawn. Later on the deceased plaintiffs wife and the son filed ceased plaintiffs wife and the son filed the aforesaid I. A. 102/76 asking for passing of a final decree after bringing them on record as the legal representatives of the deceased-plaintiff. In the two courts below that I. A. was unsuccessfully opposed by the defendants judgment-debtors.
( 3 ) IT is contended by the appellants in this second appeal that the decree and judgment of the appellate Court dated 10-10-75 passed after the death of the sole appellant is a nullity, because they say, the suit had abated with the death of the plaintiff and without his legal representatives being brought on record. The contention of the defendants all through has been that as the decree of the District Court dated 10-10-75 was a nullity it could not be execute and I. A. 102/76 should not have been allowed. 3.-A. Surprisingly, the state of law on abatement does not appear to be certain. Although the Civil Procedure Code is reasonably clear on the point the judicial decisions appear to the wavering and conflicting. It appears to me that the judicial pronouncement did not attach sufficient importance to the scheme of Order 22 and the vital changes it has brought about in the law of abatement.
( 4 ) IN earlier times, every change of interest caused by death or otherwise of a plaintiff termination or destruction of the proceedings. It is such termination of the proceedings. It is such termination of destruction of the proceedings that is called abatement. Abatement of legal proceedings caused by death could not then be arrested. By even then, where right of action survived the death of a party, abatement although ensued was held to be curable. In other words, although abatement followed automatically the death of a party, the sting of ill effects of abatement was taken off by institution of separate proceedings curing abatement resurrecting the legal proceedings. But, now O. 22, R. 1 of Civil P. C. alters this legal theory by laying down a different rule. According to O. 22, R. 1 the death of a plaintiff
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