Shunkaramuia and Others vs Nagar Manjappa and Another

Padmanabhiah, J.—This appeal was originally filed by three apellate, viz., Shankaramma, Sanna Mariyanna and Sonnappa. The first Appellant Shankaramma is spited to be dead subsequently, and the remaining Appellants filed a memo stating that the right to sue survives to them and that they may use brought on record as legal representatives of The deceased first Appellant, the office has put up a note stating that an application duly stamped is necessary and a mere memo seeking that relief is not sufficient. On the side of the Appellants, it is contended by their learned Counsel that no application is necessary and that the memo filed is sufficient.

It appears to us that the view taken by the office is not correct and that the contention of the learned Counsel for the Appellants has to be upheld. Order 22, Rule 2, CPC runs thus;

Where there are more Plaintiffs or Defendants than one, and any of them dies, and where the right to sue survives to the surviving Plaintiff or Plaintiffs alone, or against the. Surviving Defendant or Defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving Plaintiff or Plaintiffs or against the surviving Defendant or Defendants.

In the present case, the first Appellant is dead and the right to sue has survived to the remaining Appellants, Eath the conditions stipulated. under Order 22, Rule 2, CPC have been satisfied. In such cases i.e. in cases where one of the Plaintiffs or Defendants dies and the right to sue survives, what is contemplated under Rule 2 of Order 22 is that the Court should cause an effect to be made on the record anr" ecb that the suit should proceed at the instance f)f the surviving Plaintiff or Plaintiffs or against the surviving Defendant or Defendants.

It does not contemplate an application in Behalf as is contemplated in Rules ti and 4 same order. No question of abatement laces in cases falling under Rule 2 of Order 22, Civil Procedure. These principles have been enunciated In the cases reported in Nankoo Ahir Vs. Bhagelu Ahir and Others, Achuthan Nair v. Manavikraman AIR 1929 Mad 152 (AIR v. 16) (B) & Himangshu Bhusan Kar and Others Vs. Manindra Mohan Saha, . In view of the clear language used in Order 22, Rule 2. Code of Civil Procedure, and the decisions referred to above, we are of opinion that no application is necessary to bring on record the L.Rs. of a deceased Appellant or Respondent when there'' are more than one and when the right to sue survives to the surviving Appellant or Appellants alone or against the surviving Respondent or Respondents alone.

In the result, the objection raised by the office is overruled and an entry bringing Appellants 2 and 3 in place of the deceased first appellant is directed to be made and the appeal pro ceded with.