ORDER 22 RULE 6 OF CPC: PRINCIPLES & EFFECT

 

Order 22 Rule 6 of CPC: Principles & effect

The Order 22 Rule 6 of Civil Procedure refers to an interesting situation and the courts some time have to deal with such a situation i.e when a party to the lis dies, during the court proceedings, but after advancing arguments, but before the order pronounced.  What will be the situation as per law, taken together with the principles as contained therein in Order 22 Rule 6 of Code of Civil Procedure. The issue, no doubt, is vexed and there are conflicting judgments in this regard. The effort is made herein to come to a reasonable conclusion, after analyzing the principles as also law laid down in this regard.

There is no doubt to a situation rather, it is an established fact that, a suit or an appeal does not abate till the time granted for bringing on record the legal representatives expires. Thus, in effect, even after the death of a party the suit or appeal continued to survives, till such time, the time provided under law for bringing on record the legal representatives does not expires. However, a moot question in this regard shall be as to whether suit or an appeal survives after the death of a parry. The obvious question will be, whether the parties were represented at the time of arguments or hearing of the case. what, if a party dies before the matter is finally heard and argued before the Court. Can an Advocate appear for a dead party?  Shall it not be akin to a situation that the Advocate is then representing nobody. Thus, by fiction of law, the suit or appeal may be surviving even after the death of the party for a particular period of time, but shall not the authority of the advocate ceases immediately after the death of a party?

Before going further, it may be apt to reproduce the principles as contained in Order 22 Rule 6 of Code of Civil procedure:

Order-22 Rule-6.

No abatement by reason of death after hearing :--

“Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

 

The Division Bench of Andhra Pradesh High Court in the year 2001 in a matter captioned as Golla Krishna Murthy vs Golla Yellaiah (Dead) By LRs 2001(5) ALD 484  has held as under:

4. …….It is also not true that the appellate Court is mainly confined to the examination of correctness of the judgment of the lower Court by reference to the law applicable and material already gathered. The fact of the matter is that the parties have a right to be heard and if parties are not represented by reason of death of a party at the hearing, the decree, in our view, becomes a nullity. We are fortified in our view by a Division Bench judgment of Kerala High Court in Easwara Iyer v. Vella Muthan, 1998 (4) SCC 607 (ker). In this judgment (supra) 'Hearing' as occurring in Order 22, Rule 6 was interpreted and it was held that, hearing does not mean hearing of arguments only, it refers to all the stages of the trial of a suit. In our view, the hearing includes all that is done by the Court before reserving the case of judgment. While interpreting Rule 6 of Order 22 CPC, we are of the view that, hearing would be complete when nothing more is to be done by the Judge except writing the judgment’.

In this regard reference could be made to a matter captioned as N.P Thirugananam Vs R Jagan Mohan Rao 1995 SCC (5) 115, when The Supreme Court had occasion to deal with a similar situation. A party in that case had died after the arguments had been heard and judgment had been reserved.  The Supreme Court had, while interpreting Order 22 Rule 6 of CPC,  thus held as under:

The Supreme Court while interpreting Rule 6 of Order 22 CPC has held as under:

"In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if judgment had been pronounced before the death took place. Therefore, the contention that the judgment and decree of the appellate Court is a nullity is devoid of substance."

The Division Bench of Andhra Pradesh High Court in Golla Krishna Murthy (Supra) after relying upon the above judgment of Supreme Court has therefore held that if the party had died, before the conclusion of the hearing the judgment rendered would be a nullity.

                                  KERALA HIGH COURT

The earlier precedents of Kerala High Court shall be worthy of reference in this context.

(i)          The Kerala High Court In C Abdulla Damodaran Namoddodiri 1972 Ker LT 53 : (AIR 1972 Ker 116), this Court held as follows :--

"We shall mention only one decision, namely, Bhagwat Prasad Vs Beni Mahton AIR 1958 Pat 278, where a learned Judge of the Patna High Court has follows the decision of the Calcutta High Court mentioned above, In this connection, the decision of our Court by Vaidialingam J. in Meenakshy Pillaythiri Amma Vs lakshmi Amma 1967 Ker LT 777 : (AIR 1967 Kerala 135) has also been brought to our notice. The learned Judge has considered several decisions and has held that in such a case (the facts in that case were not exactly similar, the Court has inherent power under Section 151 of the Code of Civil Procedure read with Order 22 thereof to implead the legal representatives so as to do justice between the parties in the case before us the action of the Munsif in placing the case before the Subordinate Judge with a report can also be justified under Section 151.."

(ii)        In Assyamma v. Aisabi, 1976 Ker LT 101 the Kerala High  Court has held thus :-

"On the death of the 2nd respondent, the appeal had abated and the decree passed by the first appellate Court in ignorance of this fact in the eye of the law is a nullity. Strictly speaking there was no decree to be appealed against. The proper course in the circumstances to be adopted is to set aside the ineffective decree of the first appellate Court. giving the appellant herein an opportunity to take such steps as are necessary to have the abatement set aside, if she is entitled to do so, and to have the matter proceeded with after bringing on record the legal representative of the deceased second respondent."

(iii)       The Kerala High Court in a matter reported as  Paru v. Devaki Varassiar, 1992 (2) Ker LT 687, it was held as follows :

"Here in this case the fact that the appellant died prior to the passing of the decree by the lower Appellate Court has become obvious. The legal representatives are attempting to file this Second Appeal. All that the Court can do is to indicate to the legal representatives that their proper remedy lies in moving the Lower Appellate Court with the necessary application form getting themselves impleaded and for getting a proper re-adjudication of the appeal. No principle of law enables or entitled the legal representatives straightway file a Second Appeal before this Court on an assertion that the decree of the lower Appellate Court passed against their predecessor-in-interest who was the sole appellant therein was a nullity. Even if the decision in the appeal was a nullity it could not set at naught the decree of the trial Court which was one against the predecessor-in-interest of the appellants in this Second Appeal."

(iv)    The Kerala High Court thus in Uma Andarjanam And Ors. vs Neelakandan Namboodiri & Ors AIR 2001 KERALA 314 after taking note of the above judicial precedents of Kerala High Court, has held as under:

5. In view of the above proposition of law. I have no hesitation to hold that the decree passed by the lower appellate Court becomes a nullity. When that be so, there is no necessarily to go into the judgment of the lower appellate Court and the appeal has to be dismissed and accordingly it is dismissed. No doubt, as per the principle laid down by this Court in the three decisions extracted above, the parties can move the lower appellate Court in bringing the legal representatives of the deceased-first respondent, who was the appellant in the lower appellate Court in accordance with law. And the lower appellate Court, when the legal representatives are brought on record in accordance with law, can further proceed and dispose of the appeal expeditiously”.

The aforesaid discussion emanating from the judicial precedents of Supreme Court, Division bench of Andhra Pradesh High Court as also, from the several judgments rendered by Kerala High Court, while interpreting the principles of Order 22 Rule 6 of Code of Civil Procedure the clear proposition in law is laid down to the effect that the once arguments are heard and judgment was reserved, but before pronouncement of judgment a party to the lis has died, the judgment in a suit or in appeal could be pronounced. However, if the arguments remained inconclusive, though trial concludes and at that stage, if a party to the lis dies, then, the judgment cannot be pronounced, since at that stage , a party shall remain unrepresented and no arguments could be advanced on behalf of a dead party. The suit or appeal shall therefore not abate by reason of death, unless within the stipulated period or as ordered by the Courts, the LRs of the deceased comes on record and the case shall move forward thereafter.

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                                  Anil K Khaware

Founder & Senior Associate

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