Case Note & Summary
This civil first appeal before the High Court of Judicature for Rajasthan at Jodhpur arose from an ex parte judgment and decree passed by the Additional District Judge, Pali. The original suit had been filed by Lala Ram, the sole plaintiff, against the appellant Kalu Ram. The sole plaintiff died on 26.05.2023, nearly two years before the trial court pronounced its judgment and decree on 30.04.2025. Despite the death, the trial court decreed the suit ex parte against the appellant. Thereafter, persons claiming to be the legal representatives of the deceased plaintiff initiated execution proceedings on the strength of that decree. The appellant filed a first appeal under Section 96 read with Order XLI Rule 1 CPC, accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay of 345 days. The High Court condoned the delay, finding sufficient cause: the appellant had no knowledge of the ex parte decree until execution proceedings were initiated, and the delay was not deliberate. The court then heard the appeal finally with consent of counsel. The appellant contended that the impugned judgment and decree were unsustainable because the sole plaintiff had died before the decree was passed, no application for substitution of his legal representatives was filed within the prescribed period, and no application for condonation of delay or setting aside of abatement under Order XXII Rule 9 CPC had ever been made. Consequently, the suit had abated by operation of law, and the trial court lacked jurisdiction to proceed. The appellant further argued that the legal representatives, not having been brought on record, could not maintain execution proceedings as they were not decree-holders. The respondent's counsel did not dispute any of these factual assertions. The court examined the statutory scheme under Order XXII CPC, noting that while death of a party does not automatically abate a suit if the right to sue survives, the death of the sole plaintiff requires substitution of legal representatives within the prescribed period. Failure to do so results in statutory abatement by operation of law, which can be set aside only under Order XXII Rule 9 read with Section 5 of the Limitation Act upon showing sufficient cause. In the present case, since no such steps had been taken and no order bringing legal representatives on record had been passed, the suit stood abated and never revived. The court held that the judgment and decree dated 30.04.2025 were a nullity and non est in the eyes of law, incapable of execution. It further held that the execution proceedings initiated by the purported legal representatives were without sanction of law because they had never acquired the status of decree-holders. Accordingly, the appeal was allowed, the impugned judgment and decree were set aside, and the execution proceedings were rendered unsustainable. The decision primarily favored the appellant, who was the original defendant.
Headnote
A) Civil Procedure - Abatement on Death of Sole Plaintiff - Statutory Abatement and Substitution - Code of Civil Procedure, 1908 (CPC), Order XXII Rules 1, 3, 9 - The sole plaintiff died on 26.05.2023; no application for substitution under Order XXII Rule 3 within prescribed period; no application under Order XXII Rule 9 or Section 5 Limitation Act to set aside abatement; suit abated by operation of law; trial court lacked jurisdiction to proceed. Held that abatement is statutory and does not require formal judicial order; only after condonation, setting aside abatement and bringing legal representatives on record can suit revive (Paras 12-16, 18). B) Civil Procedure - Validity of Decree Passed After Abatement - Nullity of Proceedings - Code of Civil Procedure, 1908 (CPC), Order XXII - Decree dated 30.04.2025 passed after suit abated without substitution of legal representatives is a nullity and non est; incapable of creating or conferring any legal right. Held that judgment and decree passed by trial court after abatement and without revival cannot be sustained (Paras 17-18, 20). C) Execution - Maintainability of Execution by Legal Representatives - Decree-Holder Status - Code of Civil Procedure, 1908 (CPC) - Legal representatives never brought on record; no decree passed in their favour; they could not be decree-holders; execution petition filed by them is without sanction of law and suffers from foundational jurisdictional defect. Held that execution proceedings are unsustainable (Paras 17, 19). D) Limitation - Condonation of Delay in Filing Appeal - Sufficient Cause - Limitation Act, 1963, Section 5 - Appeal filed 345 days beyond limitation; appellant claimed knowledge only upon execution proceedings; court found sufficient cause; delay condoned. Held that since appellant sought to challenge legality of proceedings, delay deserves condonation (Paras 2-4).
Issue of Consideration
Whether after death of sole plaintiff and consequent abatement of suit by operation of law under Order XXII CPC, the trial court could pass judgment and decree without substitution of legal representatives and setting aside abatement; and whether execution proceedings by legal representatives not on record are sustainable.
Final Decision
The appeal was allowed. The impugned judgment and decree dated 30.04.2025 passed by the learned Additional District Judge, Pali in Civil Original Suit No.196/2015 (166/2013) (CIS No.1326/2014) were set aside. The execution proceedings initiated by the persons claiming to be legal representatives of the deceased plaintiff were held unsustainable and could not be permitted to proceed further. The delay in filing the appeal was condoned.
Law Points
- Death of sole plaintiff does not automatically abate suit if right to sue survives
- legal representatives must be substituted within prescribed period under Order XXII Rule 3 CPC
- failure to apply results in statutory abatement by operation of law
- abatement can be set aside under Order XXII Rule 9 CPC with Section 5 Limitation Act condonation
- without setting aside abatement and bringing legal representatives on record
- court cannot proceed
- decree passed after abatement is nullity
- legal representatives not brought on record are not decree-holders and cannot execute decree
