Complete representation of legal heirs is required under Order XXII; failure to implead all representatives causes abatement.
Under Order XXII of the Code of Civil Procedure, 1908, an appeal continues only if the deceased party's legal representatives are brought on record within limitation and the entire estate is properly represented. A belated, unsupported substitution application, without affidavit or proof of the death and substitution steps, was insufficient to keep the appeal alive against the deceased respondent, so the appeal abated as to her and the decree in her favour became final. The appeal also abated against the remaining respondent because one legal representative of the deceased appellant was not impleaded, leaving his estate incompletely represented. The appeal could not proceed and was dismissed with costs.
Issues: (i) Whether the appeal abated against the deceased plaintiff-respondent for want of timely and duly proved substitution of her legal representatives. (ii) Whether the appeal abated against the remaining respondent because the deceased appellant's entire interest was not represented by all his legal representatives on record.
Issue (i): Whether the appeal abated against the deceased plaintiff-respondent for want of timely and duly proved substitution of her legal representatives.
Analysis: On the death of a party, the appeal can proceed only if the legal representatives are brought on record within limitation. A belated and unsupported copy of an alleged substitution application, without affidavit and without proof of when the death occurred or how substitution was effected, was insufficient to establish valid continuation of the appeal against the deceased respondent.
Conclusion: The appeal abated against the deceased plaintiff-respondent, and the decree in her favour stood final.
Issue (ii): Whether the appeal abated against the remaining respondent because the deceased appellant's entire interest was not represented by all his legal representatives on record.
Analysis: For continuation of an appeal under Order XXII of the Code of Civil Procedure, 1908, the whole interest of the deceased party must be represented by all persons constituting his legal representatives, either directly or through proper impleadment. Partial representation is insufficient where one legal representative is omitted and not impleaded in the appeal. Since the deceased appellant's daughter, being one of his legal representatives, was not before the Court, the estate was not completely represented.
Conclusion: The appeal also abated against the remaining respondent.
Final Conclusion: Owing to abatement as to one respondent and failure of complete representation of the deceased appellant's estate as to the other, the appeal could not proceed and was dismissed with costs.
Ratio Decidendi: In an appeal governed by Order XXII of the Code of Civil Procedure, 1908, all legal representatives representing the whole estate of a deceased party must be brought on record within limitation; failure of complete representation causes abatement.
TaxTMI 
AI Drafter ✕
TaxTMI 
TaxTMI 
