Law: Civil Procedure Code (V of 1908)

Section: O.XXII,rr.6,11,4

Law: Civil Procedure Code (V of 1908)

Section: O.XXII,rr.6,11,4

(a) Civil Procedure Code (V o f .1908) O. X X II , rr. 6 and 11-Abatement-Suit abates if plaintiff dies during pendency of suit-No abatement of suit can take place after decree. It is correct that if the plaintiff died during the pend­ency of the suit in the lower Court the suit would have abated (assuming it to be a personal action). But I have no doubt that a question of abatement of suit after a decree has been passed in the plaintiffs favour does not arise. There are two simple answers to the argument of learned counsel for the appellants. The first is that there is no provision in the C. P. C. under which a suit may abate during the pendency of the appeal. Order 22, C. P. C. provides only for the abatement of any proceeding during its pendency and in this respect appeals stand on a separate footing from suits in the original Court. The rules in Order 22 apply originally only to suits and to the death of plaintiff and defendant. By rule 11 when they are to be applied to appeals the words 'appellant' and 'respondent' are substituted for 'plaintiff' and 'defendant' and the word `appeal' is substituted for the word 'suit'. The result is that a suit can only abate during its pendency and similar is the case with an appeal. This will be clear from a consideration of the various rules of Order 22. According to this rule an abatement of a suit cannot take place after the conclusion of hearing in the trial Court though death takes place before . That would mean that after conclusion of hearing of a proceeding the question of its abatement does not arise. It is to be noted that this rule applies "whether the cause of action survives or not." Suppose in this case death occurred after conclu­sion of hearing and before' . Could the suit abate? The words of the rule are imperative: "There shall be- no abatement." The position cannot be worse if the party dies after getting a decree. The use of the words "whether cause of action survives or not" clearly indicates that the Legislature does not at all visualize abatement of a suit after conclusion of hearing. It is not open to serious doubt that after a money decree has been obtained in a personal action, death of the…

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