Law:

Section:

(a) Civil Procedure Code (V of 1908)-----0. VII, R.26, O.VIlI, R.13 6 O.XXII, R.3 [as amended by Law Reforms Ordinance (XII of 1972))--Death of plaintiff during pendency of his appeal would not cause his appeal to abate after the amendment of R.3 of 0 . XXI I of C . P . C . if no application for impleading his legal representatives was brought within period of limitation--In absence of such application for impleading legal representatives of a deceased party, Court would continue with adjudication of suit and the decree so passed would be valid. Unamended sub-rule (2) of Rule 3 of Order XXII, C.P.C. will show that if no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned. But this condition is not enunciated in the amending sub-rule (2). Now as the appeal in the present case was pending in the High Court when Order XXII, C . P. C . was amended and as the plaintiff had already died, it could not be argued that the appeal of the plaintiff abated in view of the fact that no application was made under sub-rule (1) for the impleadment of his heirs within the period of limitation. Correct that according to the-- mending sub-rule (2) of Rule 3 of Order XXII, C.P.C. an application for the Impleadment of the heirs of the deceased is to be made within the period of limitation, but unless the legal heirs are aware that their deceased predecessor has brought action in a particular Court, how should they be made to suffer and the Court straightaway give decision against them? Now when the legal representatives of the plaintiff were not impleaded within time allowed by the law i.e. 90 days, the suit will not be dismissed as abated and the Court may proceed with the suit notwithstanding the failure to implead the legal representatives of the plaintiff. To similar effect would be the position in the case of death of defendant as laid down in Order XXII, Rule 4, sub-rule (2). The amending rule provides that even in the absence of application having been made for impleading the legal representatives within the prescribed time, order or in the case may be pronounced in the suit or appeal and it will have the same force and…

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