A party's right to continue litigation following a party's death is preserved under CPC, allowing substitution even if the initial application cites the wrong procedural rule, emphasizing the continuity of interest.

JUDGMENT :

RAMACHANDRA D. HUDDAR, J.

1. The appellant/applicant has assailed the order dated 16.11.2011 passed on IA No.II by the Fast Track Court-V at Madhugiri, rejecting the application so filed by the applicant and ordered that the appeal stood abated.

2. It is the case of the appellant before the Appellate Court in Regular Appeal No.166/2008 on the file of Fast Track Court-V, Madhugiri that, she being the applicant filed an application under Order 22 Rule 3 of CPC, to come on record as the legal representative of the appellant by name Lakshmidevamma, who died during the pendency of the appeal.

3. It is stated in the application that, the appellant Lakshmidevamma died on 18.09.2008, leaving behind the applicant as sole legal heir. It is stated that, the appellant during her lifetime executed a Will dated 30.08.2001 and 27.10.2005 bequeathing her properties. It was the last Will of the appellant. It was applicant, who performed last rites of the deceased Lakshmidevamma. She had filed an application under Order 22 Rule 3 of CPC, to come on record as legal representative of the appellant.

4. Before the Appellate Court, the said application was resisted by the respondent by filing detailed objections. It is contended that, the said Lakshmidevamma has no right to execute the Will or not to bequeath the suit property as her whims and fancies. The suit schedule property was the joint family property of herself and respondent. It is contended that, during the lifetime of Lakshmidevamma, she never whispered anything about the alleged Will. It is stated in the cross- examination in O.S.No.65/2003 that she was not aware of the applicant and her parenthood relationship etc,. Thus, it is contended that, with an ulterior motive to knock out properties of the respondent, now the applicant wants to come on record as a legatee under the Will. No rights have been devolved on the applicant to come on record. Thus, it is prayed by the respondent to dismiss the application.

5. To substantiate the assertions made in the application, the applicant examined 3 witnesses i.e., herself as PW.1 and another as PW.2 and PW.3, who are attesting witnesses to the will. Got marked Exs.P1 and P2 in support of assertions made in the application. The respondent has not led any evidence to substantiate the objections so filed to the application.

6. Learned Appellate Court, having heard the arguments of both the sides, raised the point for consideration and answered the same in the negative and ultimately dismissed the said application so filed by the applicant, Lakkamma and observed that the appeal stood abated. This is how, now the appellant/applicant is before this Court challenging the impugned order dated 16.11.2011.

7. The record of this appeal also reveals that respondent died during the pendency of this appeal and her legal representatives are brought on record in the shape of respondent Nos.1 to 9. Accordingly, cause-title came to be amended.

8. Trial Court records is secured.

9. Heard the arguments of learned counsel for the appellant and learned counsel for the respondents on this application.

10. It is admitted fact between both the sides that, there was an appeal filed by the appellant Lakshmidevamma D/o Yerrobanna @ Yarranna, being aggrieved by the judgment so passed in O.S.No.65/2003. It is also an admitted fact that during the pendency of the appeal in R.A.NO.166/2008, original appellant Lakshmidevamma died. After her demise, the present applicant by name Lakkamma filed an application in t