Law: Civil Procedure Code (V of 1908)

Section: O.Xx71,XLI,XXII,R.3,4,11,14(3)

(a) Civil Procedure Code (V of 1908), O. XXII, r. 4 read with r. 11 Abatement of appeal Death of one of the appellants Failure to substitute his legal representative Test to determine whether appeal abates as a whole. One of the tests whether an appeal as a whole has abated is whether if the appeal succeeds there will be in existence two conflicting decrees. If such be the position, then the appeal as a whole abates and not partially. Amjad Sheikh and others v. Siddik Hossain Sikdar and others 8 D L R 217 ; Raghunath Singh Hazari and others v. Abdul Rashid 8 D L R 577 and Sadat Ali v. Asrab Ali Sarkar and others P L R 2 Dacca 630 ref. (b) Civil Procedure Code (V of 1908), O. XXII, r. 4, sub r. (4) [as added by Calcutta High Court vide notification in Calcutta Gazette dated 2nd April 1938] Sub rule (4) does not exempt plaintiff from necessity of substituting legal representative of con¬testing defendant. Sub rule (4) added to rule 4 of Order XXII of the Civil Procedure Code by the Calcutta High Court in 1938 (vide Calcutta Gazette : 2 4 1938) and applicable in the Dacca High Court, enables the Court in a proper case to exempt the plaintiff' from the necessity of substituting a legal repre¬sentative of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing. This rule, however, does not say anything about exempting the plaintiff from the necessity of substituting the legal representative of a contesting defendant and, therefore, cannot be of much assistance when the appeal has abated as against the legal representative of a contesting defendant. Ramphal Sahu and others v. Babu Satdeo Jha and another A I R 1940 Pat. 346 (F B) ; Nanak v. Ahmad Ali A I R 1946 Lah. 399 (F B) ; Nibaran Chandra Ghose and others v. Pratap Chandra Chowdhuri and others 44 C W N 141 ; Sarat Chandra Narayan Chowdhury and another v. Fezuram Nath and others 46 C W N 281 Karimonnessa Bibi v. Juran Mondal 59 C L J 318 ; Satulal Bhattacharjee and others v. Asiraddi Sheikh 59 C L J 362 ; R. M. M. S. T. Somasandaram Vairavan Chettiar and others v. Vaithilinga Mudaliar and others I L R 40 Mad. 816 ; Chintaman v. Gangabai I L R 27…

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