LAW Courses
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Bhaskaran Advocate (Lawyer)     15 July 2008

Order XXII under C.P.C.

4.        Procedure in case of death of one of several defendants or of sole defendant.-  


(1)      Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.


 


Now the question?


I have filed a money recovery suit under Promissory Note on behalf of my client.


There were 3 defendants who had signed the Promissory note and consideration receipt.


Hence all the 3 are liable to pay jointly and severally.


Now the Defendant No.3 dies.  The right to sue survives on the other two I & II Defendanats.  Can the Legal Representatives of Defendant No.3 can be made parties to the suit?


The Rule says  if right to sue does not survive against the surviving defendant then the Legal Representatives can be brought in.  If it survives are we barred to bring in the Legal reprsentatives by making an application.


Please anyone clarify.


 


 


 



 8 Replies

Vikram Chandra (Advocate)     15 July 2008

In view of the facts as raised by you, absolutely there is no bar under the law or under the provision of XXII Rule 4 of C.P.C. to bring the LR's of the deceased as far as the Defendant No.3 is concerned. For Eg.,


If 'A' files injunction suit against 'B' then 'A' cannot bring the LRs' of 'B' on record as it is a personal relief sought only on 'B' by 'A' and the LRs' of 'B' cannot be bound for the acts of 'B', thus the cause does not survive against the LRs' of 'B'.


If 'A' files a partition suit against 'B', 'C' & 'D' and 'C' dies then 'A' should bring the LRs' of 'C' on record for proper and effective adjudication.


regards,


vikram chandra.


 


 


 


 

KamalNayanSaxena (lawyer)     16 July 2008

Where a joint claim against several defendants is made in a suit and during pendency of suit some of the defendants die and no separate claim is made against any of the defendants in suit, the failure of the plaintiff to bring on record their legal representatives results in abatement of suit in toto

Bhaskaran Advocate (Lawyer)     16 July 2008

My thanks for the replies received.  But why the section under Order XXII Rule 4 says  "right to sue does not survive against the surviving defendant"?


It goes to explain that when "right to sue does not survive against the surviving defendant",  then Legal representatives of the deceased can be brought in.


On the other hand if "right to sue survives against the surviving defendant, then there seems to be no necessary in bringing the L.R's of the deceased.  Since the other defendants will pay out the money on the suit.  But in this case the estates of Defendant No.3 and his L.R's will escape. 


So as said above by our collegue Vikram I take to believe that we can file a L.R's application against the deceased's successors and proceed with the case.


Thanks once again.

Ajay kumar singh (Advocate)     16 July 2008

Where there is sole deft and he dies during the pendency of suit,the suit fully abates on failure to substitute the L.Rs. But when one of several defts dies,in that case also substitution of L.Rs. is necessary otherwise the suit will abate as against the deceased deft.This is the gist of the provision.

Bhaskaran Advocate (Lawyer)     16 July 2008

Thanks Ajay Kumar

Srinivas.B.S.S.T ( Advocate)     16 July 2008

As the liability of the defendants is joint and several  so
as to go on with the several liability of deceased Defendant you must
file LR petition to bring his LRs on record.

Vijay Kumar (Advocate)     16 July 2008

As the liability is joint and several, the remaiing defendants namely I & II are liable to honour the decree of the court; however, they further are entitled to recover the share of defendant no.3's liability from his estate.

Guest (n/a)     17 July 2008

hello friends,


Just I am looking one authority for my client.

The real fact is my client has one property in town. Which was brought before one mediator. After my client got the information that property was under control of one education trust. Since our client stay more then 45 years in such premises. Now my client got notice by trust authority for vacates such property.

 

My question is whether it is possible to vacate my client in that premises?

Is there is any authority?

 

Kindly may help me, my learned friends.

Thanking you,

 

My E- Mail id : jrn_44@yahoo.co.in

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query