Defamation appeal abates on death of sole appellant because the right to sue does not survive to legal representatives.

Order XXII CPC applies to appeals by treating the appellant as a plaintiff and the appeal as a suit, so an appeal continues only if the right to sue survives. In a defamation claim, section 306 of the Indian Succession Act excludes the cause of action from survival to the deceased's estate. Accordingly, when the sole appellant in a defamation appeal dies, the appeal abates automatically and legal representatives acquire no right to be substituted. Applications for substitution and for setting aside abatement are therefore not maintainable.

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Issues: Whether the appeal survived the death of the sole appellant in a defamation action and whether his legal representatives could be substituted to continue the appeal.

Analysis: Order XXII of the Code of Civil Procedure, 1908 applies to appeals by treating an appellant as a plaintiff and an appeal as a suit. The death of a sole appellant does not abate the appeal only if the right to sue survives. Section 306 of the Indian Succession Act, 1925 expressly excludes causes of action for defamation from survival to the estate of the deceased. In a defamation suit dismissed by the trial court, the appeal filed by the plaintiff is a continuation of the claim to enforce the right to sue for damages. Since that right does not survive on death, the appeal abates automatically and the legal representatives acquire no right to be brought on record. The applications for substitution and for setting aside abatement were therefore not maintainable.

Conclusion: The appeal had abated on the death of the sole appellant and the legal representatives could not be substituted. The applications were not maintainable.

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