Law: Civil Procedure Code (V of 1908)

Section: 2,4

  Civil Procedure Code (V of 1908), O. XXII, rr. 2 & 4 Presence of one of legal representatives of deceased on record in another capacity-Does not absolve contesting party from making formal application for bringing legal representatives of deceased on record within statutory period.   Chunilal v. Aminchand A I R 1933 Lah. 356; Dawloo Ma and others v. Karnam Ghowdappa and others A I R 1930 Mad. 579 and Hakim Ali and others v. Shia Narain and others A I R 1933 Lah. 765 ref.   Muhammad Jabar Khan Chandio v. Muhammad Murad and others P L D 1958 Kar. 229 and Mirza Khan v. Ganesh Dass and others P L D 1960 Lah. 577 fol.   Civil Procedure Code (V of 1908), O. XXII-Decree passed after death of a party to suit or appeal-Not an absolute nullity-Mistake can be rectified by setting aside proceedings taken after death of deceased and directing retrial of case in presence of legal representatives.   It is a well settled rule of law that a decree passed after the death of a party to a suit or appeal is not an absolute nullity. It is not void nor is it open to collateral attack but it is erroneous and liable to be set aside. The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased and directs that the case be retried in the presence of the legal representatives from the stage which it had reached immediately before the date. This principle is followed on the ground that all the parties to the litigation should be placed in the same position in which they would have been if the legal representatives had been imp leaded at the proper time.   Tatoram v. Kundan and others A I R 1928 Lah. 784 ref.   Civil Procedure Code (V of 1908), O. XXII, rr. 2 & 4 Abatement of suit--Legal representatives of deceased defendant not brought on record within statutory period-Legal representatives not likely to be prejudiced by not remanding suit-Suit, held, not abated.   Tatoram v. Kundan and others A I R 1928 Lah. 784 and Birbal and others v. Harlal Sodasukh and others A I R 1953 Punj. 252 ref.   Civil Procedure Code (V of 1908), O. XXII, rr. 2 & 4 Abatement of suit-Plaintiff not bringing…