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Nankoo Ahir Vs. Bhagelu Ahir and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All347
AppellantNankoo Ahir
RespondentBhagelu Ahir and ors.
Excerpt:
- .....the provisions of order 22. abatement arises only under rule 3 when one of two or more plaintiffs dies and the right to sue does not survive, or under rule 4, when one of two or more defendants dies and the right to sue does not survive. there can be no abatement-under rule 2 where there are more plaintiffs or defendants than one, and any one of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone. in such a case no application by any party is necessary but it is made incumbent on the court to cause an entry to that effect to be made on the record without any application. the present case falls under rule 2 in which there is neither abatement nor any question of limitation. an entry.....
Judgment:

Dalal, J.

1. There appears to be a lot of misapprehension as regards the provisions of Order 22. In the present case, the statement before the Court is that Chilar Ahir deceased respondent died and a request is made that the abatement as against him be set aside. At the same time it is submitted that the right to sue survives against the existing respondents. This is to misunderstand the provisions of Order 22. Abatement arises only under Rule 3 when one of two or more plaintiffs dies and the right to sue does not survive, or under Rule 4, when one of two or more defendants dies and the right to sue does not survive. There can be no abatement-under Rule 2 where there are more plaintiffs or defendants than one, and any one of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone. In such a case no application by any party is necessary but it is made incumbent on the Court to cause an entry to that effect to be made on the record without any application. The present case falls under Rule 2 in which there is neither abatement nor any question of limitation. An entry shall be made on the record that Chilar Ahir is dead and the right to sue survives against the other respondents. Chilar's name shall be removed from the record.


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