Case Note & Summary
The case involved a dispute over a civil suit for declaration and possession filed by two sons of Tukaram Rodge against the sons of Gangaram Rodge. The suit was initially dismissed in 1982, but the First Appellate Court decreed it in favor of the plaintiffs in 1992. The defendants then filed a Second Appeal in the High Court, where the plaintiffs were Respondents. During the pendency of the appeal, one of the plaintiffs died, leading the High Court to dismiss the appeal on the grounds of abatement due to the failure to bring the legal representatives of the deceased plaintiff on record. The Supreme Court found that the High Court erred in its judgment, stating that the death of one plaintiff does not abate the appeal as the cause of action survives against the surviving plaintiff. The court referenced the relevant provisions of the Civil Procedure Code, particularly Order XXII, which clarifies that the right to sue survives against the surviving party. Consequently, the Supreme Court allowed the appeals, set aside the High Court's dismissal, and remanded the Second Appeal for fresh consideration on merits, requesting the High Court to expedite the hearing. The decision emphasized the importance of ensuring that the legal rights of surviving parties are upheld in civil litigation.
Headnote
A) Civil Procedure - Abatement of Appeal - Survival of Cause of Action - Civil Procedure Code, 1908, Order XXII Rule 2 - The court held that the death of one of the decree holders does not lead to abatement of the appeal as the cause of action survives against the surviving plaintiff. The High Court's dismissal of the Second Appeal on the grounds of abatement was erroneous and contrary to law. (Paras 5-10)
Issue of Consideration
Whether the Second Appeal abated due to the death of one of the plaintiffs.
Final Decision
The Supreme Court allowed the appeals, set aside the High Court's dismissal of the Second Appeal and the application to set aside abatement, and remanded the matter back to the High Court for fresh consideration on merits.
Law Points
- Abatement of appeal
- survival of cause of action
- Civil Procedure Code
- 1908
- Order XXII Rule 2
- Order XXII Rule 11
