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.
------
Anil K Khaware
Founder &
Senior Associate
Societylawandjustice.com
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