Order 22 CPC applies only to deaths during pendency; a respondent already dead at filing must be addressed through proper impleadment.

Order 22, Rule 4 CPC applies only when death occurs during the pendency of a proceeding; it is not available where a respondent was already dead at the time of institution. In that situation, the deceased person is wrongly joined, and substitution under Order 22 is the wrong procedural route. If the deceased was a necessary party, the proper course is to seek impleadment or amendment under the relevant procedural provisions, including Order 1, Rule 10 or Order 6, Rule 17, in the main proceeding. The text distinguishes this from a case where the sole defendant is dead and notes that the application under Order 22 failed, while other procedural remedies remained open.

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Issues: (i) Whether an application under Order 22, Rule 4 of the Code of Civil Procedure, 1908 was maintainable where one respondent was already dead before institution of the proceeding; (ii) whether the deceased respondent's legal representatives could be brought on record under Order 1, Rule 10 or Order 6, Rule 17 of the Code of Civil Procedure, 1908.

Issue (i): Whether an application under Order 22, Rule 4 of the Code of Civil Procedure, 1908 was maintainable where one respondent was already dead before institution of the proceeding.

Analysis: Order 22 applies only where death or transfer occurs during the pendency of a proceeding. Where a proceeding is instituted against a person who was already dead, the party is wrongly joined and the proceeding, as against that person, cannot be treated as one of substitution on death during pendency. In such a situation, the proper course is not to invoke Order 22, Rule 4.

Conclusion: The application under Order 22, Rule 4 was not maintainable.

Issue (ii): Whether the deceased respondent's legal representatives could be brought on record under Order 1, Rule 10 or Order 6, Rule 17 of the Code of Civil Procedure, 1908.

Analysis: A distinction was drawn between a case where the sole defendant is dead, which renders the proceeding a nullity, and a case where one among several defendants was dead at the date of institution, in which event the deceased name is to be struck out as wrongly joined. If the deceased person is a necessary party, his legal representatives may be impleaded in the proper manner, but not under Order 22. The legal representatives, if brought in, must be joined in their own right through the appropriate procedural route in the main proceeding.

Conclusion: The present application under Order 22 failed, though recourse to Order 1, Rule 10 in the main proceeding was left open.

Final Conclusion: The proceeding against the already deceased respondent could not proceed by substitution under Order 22, and the application was dismissed, leaving the main case to be dealt with by the appropriate amendment or impleadment course.

Ratio Decidendi: Order 22 governs only deaths or transfers occurring during pendency; where a person is dead on the date of institution, the proper course is striking out the wrongly joined party and not substitution under Order 22.

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