Second Appeal Does Not Abate On Death Of One Respondent When Right To Sue Survives Against Surviving Respondent: Supreme Court

The Supreme Court observed that a second appeal does not abate on death of one of the respondents when the right to sue survives against the surviving respondent.

Abatement occurs only when the cause of action does not survive upon or against the surviving party, the bench comprising Justices Indira Banerjee and V. Ramasubramanian observed.

The court was considering an appeal against the Bombay High Court order dismissing a Second Appeal as having abated due to the death of one of the respondents. After noticing the factual aspects of the case, the bench observed:

"When two plaintiffs joined together and secured a decree of declaration and possession of an immovable property, the death of one of the decree holders will not make the second appeal abate. As against the surviving successful plaintiff".

The court then referred to Order XXII Rules 2 and 11 of the Civil Procedure Code and observed:

"The above Rule makes it clear that where there are more defendants than one and any of them dies and where the right to sue survives against the surviving defendant, the suit shall proceed against the surviving defendant. Order XXII Rule 11 states that in the application of Order XXII to appeals, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.. Therefore, if the word "defendant" appearing in Order XXII Rule 2 is replaced by the word "respondent", it will be clear that the second appeal did not abate and the right to sue survives against the surviving respondent.Order XXII Rule 2 of the Civil Procedure Code."

Allowing the appeal,  the bench observed that the dismissal of the Second Appeal by the High Court on the ground that the appeal stood abated, without going into the merits of the case is not in accordance with law.

Case details

Sakharam (D) vs Kishanrao | 2022 LiveLaw (SC) 722 | CA 5067-5068 OF 2022 | 3 August 2022 | Justices Indira Banerjee and V. Ramasubramanian

Headnotes

Code of Civil Procedure, 1908 ; Order XXII Rule 2, 11 - A second appeal does not abate on death of one of the respondents when the right to sue survives against the surviving respondent - Abatement occurs only when the cause of action does not survive upon or against the surviving party. (Para 6-9)

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