 within himself. And we all enjoy the way he shares his knowledge. And today's session, like we are taking sessions of the Court of Civil Procedure, Impleading Abatement, Setting a Site of Awaitment and Convolution of Day, which finds mention in order 22 of the Court of Civil Procedure, is a topic which is quite close to a lot of lawyers, because some lawyers just feel that you can bring on record the application for the legal representative at any point of time. And some also feel that whether it is a bringing on record the legal representatives or it is the bleeding of the legal representatives, these certain nuances as to we have to bring on record the legal representative or we have to complete the meme of parties at state there in that they are to be pleaded as response. These are the basic tips which we would like to understand from Justice K.T. Sankaran. Before that, I will request Mr. K.B.J. Rao since he is also quite close to this. Say a few words and then we'll ask Justice Sankaran to take things forward. Thank you. Good evening, everybody. My association with Justice Sankaran started maybe four weeks back on another webinar. And honestly speaking, I'm in awe of his patients, his knowledge though is, I cannot match it or I will not be able to describe it, but his patience to teach, that is the very fundamental of his lectures. And that is where we are at ease to hear him out because the patience with which he listens to us and tries to explain the subject, even if required twice or thrice, that is his greatness and magnanimity. And to be very honest, to get a person like him to teach us, we are honored to have him with us. And I hand over the podium back to Justice Sankaran to continue, sir. Thank you. Yes, Namaste Vikas, Mr. Rao and dear viewers and good friends. Today's subject is heavy to some extent. Our day-to-day application, as Mr. Vikas pointed out, and there are so many misconceptions about the way in which the applications for implading, setting aside a wait-met and all those things should be fine. And from experience, I may say, as I judge for more than for 12 years, I have seen that in more than 75% of the cases, such applications are filed mistaken. Errors will be there. In computing the period of delay, there will be error. The office will take one view, the advocate will take another view. Ultimately, the court will have to see that. And likewise, how many applications should be filed or how many prayers should be made? Of course, these are all procedural aspects. But still, of course, the court will also see that procedure is a handmade for justice. And therefore, the procedural nuances will not defeat justice. That is also correct. And quoting a wrong provision does not entail in the dismissal of the application. That is also insignificant. But when some provisions are there, we, the lawyers, have to see that our applications are correctly submitted. Still, if something happens, the court is there to help us. The court will not be taking a very strict view and dismiss your application on the ground that a wrong provision is quoted. But at the same time, we must know what is the correct position of law. That is why this topic has been selected of day-to-day importance, day-to-day application. Now, order 22, in pleading, setting aside a wait-man, wait-man, setting aside a wait-man, contradiction of delay, etc. What is in pleading? What is the necessity of in pleading? What will happen if no application is filed within time? How the delay is computed? How the court's power is invoked to achieve your goal? These are all the aspects which we will understand in this. And now, what the fundamental principle is that there is a litigation between A and B. B dies during the litigation. The court cannot dispose of the case without hearing the legal representatives of B. There must be somebody to be heard. If a judgment is passed, all right, B was here for quite some time till the trial was almost over. Therefore, there is no harm in passing a decree against him. A decree against a dead man is an allergy. Decree in favour of a dead man also, there may be slight difference, but decree against a dead man is an allergy. So, A obtains a decree against B at a time when B was not alive. That decree is of no use when it is sought to be executed. B's LRs may say that the decree is void. Void ability show, there is no escape from it. And once it is void, it is uniform law, all throat, uniform view, all throat of the Supreme Court. That when the decree is void, its voidability can be challenged whenever and wherever it is applied and even in execution and collateral proceedings. And therefore, even if the legal representatives are not parties, they are not contested, but still they can say decree is void and it can be said even in execution. Then the whole thing will go, decree itself will go. Then the plaintiff has to, plaintiff or appellate has to take all these steps over again. Therefore, it is for the, a plaintiff or appellate to be vigilant. Whenever, of course, if he does not know of the death of the defendant or respondent, defendant, the people will know because when the trial comes, if the defendant is absent, they will inquire where is he? And during appeal before the High Court or Supreme Court, one may not know whether the respondent is alive or not, it happens or even when an appeal is filed, the appellate counsel does not know, appellate does not know, appellate counsel does not know whether his opponent is alive and very often an appeal is filed against a dead man. What will happen? Notice will be issued and only when notice is returned, it is realized that the appeal was filed against a dead man. What are the steps to be taken? Completing does not take effect at that point of time. I will explain how it happens. See, if impleading takes place, see when there is a litigation between a judge, a judge, his legal representatives have to come on record. Who has to make the application? The legal representatives have to make the application. Within what time? Within 90 days. Where is it provided? Under Article 120 of the Education. What will happen if within 90 days no application is filed? The suit will abate. What will happen if the suit is abated? It is no more there, no decree can be passed. So, what is the next step to be taken by the legal representatives who have applied before court, who wish to come on record before court, but 90 days is over. They have to make an application for impleading and they have to make an application for setting aside abatement. Abatement automatically takes effect on the expiry of 90 days. 90 days is provided in the Article 120 of the Education. And what is the time for time provided for setting aside abatement? 60 days thereafter. 60 days thereafter. So, within 60 days from 90 days, the legal representatives of the plaintiff can file an application to set aside abatement. That means that takes us to 150 days. Suppose no application is filed within 150 days, what will happen? Then also abatement. But is it sufficient if the application is filed for impleading and for setting aside abatement? No. Delay happens. Delay has to be controlled. So, suppose in a given case an application is filed by the legal representatives of the deceased plaintiff on the 200th day of the death of a plaintiff. What will happen? An application has to be filed for impleading. Another application or in the same application, another prior, of course, it is a vague question of payment of court. Various practices prevail in various courts. Some courts insist that there should be a separate application for all these things. Some courts say that it is sufficient if you pay separate court fee for all these rights. Whatever it is, another prior for setting aside abatement and yet another prior for control action delay. So, if the application is filed, applications are filed on the 200th day of the death of a plaintiff. What is the extent of delay? Is it 200 days or 110 days or 50 days? Can the viewers answer? Is it possible, Mr. Vithas? The viewer, Naveen says 50 days. 50 days. Correct answer. I know Naveen answers it properly. A few other participants, we know that the answer would be right. Correct answer. I am very happy to. I know that Mr. Rao would also answer it properly. He not only takes aviation classes, but he flies in the right direction. Correct answer. But in many of the applications, the number of days delay will be wrongly mentioned. Some mention as 200 days. Some mention as after 90 days, 100 days. Some correctly mentioned 50 days. Delay is, delay occurs when the time for setting aside abatement is over. Setting aside abatement becomes over on the expiry of 150th day. So, the delay is only 50 days. You will see article 120 and 121 of the application, 120 under the code of civil procedure to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent. It covers soup and appeals. Made a party, 90 days. Time from which the period begins to run third column of the schedule. The date of death of the plaintiff, appellant, defendant or respondent as they please. So, from the date of 90 days. Then article 121 under the same code for an order to set aside an abatement. 60 days. Third column of the schedule, the date of abatement. So, the date of abatement is on the 90th day if no application is filed automatically, abatement takes place. No separate order of the court is required to have abatement. So, if an application is filed on the 95th day, what is the prior to be made to set aside abatement and to that is enough. Because there is no delay, delay occurs on the expiry on 90 plus 16 days. That is to be condoned under section 5 of the limitation. So, these are the provisions. Now, how order 22 is arranged? Order 22, rule 1 says that if the cause of action survives, cause of action survives. No abatement by party is there. If the right to sue survives, the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. So, it includes appeal because it is made clear in rule 11, rule 11. The application of order to appeal. In the application of this order to appeal, so far as maybe the word plaintiff shall be held to include the appeal, the word defendant a respondent and the word sued and appealed. So, it applies to appeal source. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. This abatement and abatement on the expiry of 90 days is different. That dear friends, you have to please note. There is an abatement where it cannot be revived. There is an abatement which can be cured. An abatement takes place when the right to sue does not survive. For example, it is a personal action. A files a suit against B for compensation for defamation. It is a personality. A dies. The list, the case does not survive there. On the other hand, if a suit is decreed and B files an appeal compensation case for defamation. A suit is decreed. And B files an appeal. During the pendency of the appeal, A dies. It will not abate because there is already a decree. The rights are crystallized. And therefore, the cause of action does not cease. On the other hand, if the suit is pending, no decree, no final decision, no decree in favor of the plaintiff is passed. A suit for malicious prosecution, defamation, etc., will abate because the cause of action does not survive. Right to sue does not survive. So, that abatement is there. It cannot be repaired. It will not come back. Of course, there are some local laws. For example, the Kerala Tots and Misery Instruction Act. Some other personal actions are saved. Some special statutes may be there. If there is no such special statute, this person, a right to have personal services is quite personal. Suit for defamation, suit for malicious prosecution. Such things, the cause of action, the right to sue does not survive. If the right to sue does not survive, yes, legal representative, that is the plaintiff's legal representatives are not entitled to come on record and to prosecute the suit. They can come on record and to prosecute the suit only if the right to sue does not try to sue survives. So, if the a file a suit against me for recovery of possession of property or for specific performance of an agreement to sell an item on property or for some other leave regarding a mobile property or mobile property, it dies. If the right survives, sue is a state. If there are personal laws, they will get it. Or if there is legal representative, there is a difference between a legal representative and a legal air. Legal airs are personal laws as per the law to which a particular party belongs, the community to which the party belongs. But legal representative is a larger expression that is defined in the CPC. Suppose, a has executed a will in favor of b a stranger, x a stranger. So, suit between a and b, a has executed a will in respect of this property to x. A has got wife and children. Impleading has to take effect not with respect to this wife and children widow and children, but the legal representative is the legality under the wing. That means x has to be legal. So, legal representative has to be legal representative, maybe legal air need not necessarily be legal air. That difference also, dear friends, you have to take note. So, it is a right to sue survives, then it does not have it. So, abatement number one, that stage is there. Then next abatement we will discuss, that is when something is not done within time, the suit will end. That is another good. Now, there are three rules which are of importance into day-to-day functioning of a lawyer. Which are these rules? Rules two, three and four. Two applies if all the legal representatives are on the party array. Litigation between a and b, a's, widow and children are also plaintiffs. They together spoil the suit or they are shown as respondents and having some interest in the property or something like that. Personal rights, all of them are on the party array. Let us take it. And then a dies. There is no question of any abatement because lrs are already on trial. Then what is to be done? It has to be reported to the court that a died, a the first plaintiff died, his widow and children are b to e, make a record of it. So, the court will make a record that a as against a it will be recorded as dead. Then it is recorded that b to f, b to e are the legal representatives of a that will be recorded. They can continue. Of course, they cannot take a different condemnation. They cannot have the same condemnation that is well settled. Now, if one of the legal representatives is on the party, then what will happen? We will see when rule three comes. So, rule two is this. When all the legal representatives are on the party array, we will read rule two. Procedure where one of several plaintiffs or defendants dies and the right to sue survives. Though the first thing to be noted is that the right to sue survives. Then where one of several plaintiffs or defendants dies and the right to sue survives. Where there are more plaintiffs or defendants than one and any of them dies. And where the right to sue survives to the surviving plaintiff or plaintiff say no or against a surviving defendant or defendants say no. The court shall cause an entry to that effect to be made on record and the suit shall proceed at the instance of the surviving plaintiff or plaintiff or against the surviving defendant or defendant. So, all the legal representatives are on the party array need not necessarily be as plaintiffs. One of the plaintiffs died. Suit is filed by A to E. There are 10 defendants. One defendant is LRs of A. It happens. It is not that all the legal representatives should come on record on one side. There might be defendants also. If A files a suit against B to F and A is the sole plaintiff and his LRs are the defendants. Defendants 2 to 5 then they can be recorded. What will happen to the suit? What relief has been asked for whether the suit will say have no effect etc. That is a different. But it can be need not necessarily be on one side alone. So, what is rule 2? If there are more plaintiffs or defendants than one and one of them dies and all the legal representatives are on the party or a sole surviving plaintiff or defendant dies and the legal representatives are on the party. The court need make a record of it. What is the time limit? No time limit because no abatement is there when once the legal representatives are on the party array. No abatement. Therefore, there is no question of application of there is no question of any prior for setting aside abatement. No application for condonation of dealing. Nothing is required. So, this record of that the legal representatives are on the party array and recording them as the legal representatives can be done at any point of time during the dependency of the suit or appeal. So, this is rule 2. Now, what is rule 3? Rule 3 is the plaintiff or appellant dies or one of the plaintiffs or appellant dies or the sole surviving plaintiff or appellant dies and all the LRs are not on the party array. Then what happens? We will read. Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiff say, oh or a sole plaintiff or a sole surviving plaintiff dies and the right to sue survives. The court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with this. This is the duty of the plaintiff's senders to come on the call. The defendant has not a duty to make an application at all. When the suit abates, the defendant is benefit. So, he has no duty at all. So, it is a duty of the legal representatives of the plaintiff to come on record with the type as a legal representative. So, if there is a sole surviving plaintiff or plaintiffs and all and the surviving plaintiff dies and the right to sue does not survive to the surviving plaintiffs, hello, there are other persons to be made parties or all the legal representatives are to be made parties. Then rule 3 applies. What will happen? Sub rule 2, where within the time limited by law, no application is made, limited by law, what is the law? Article 120 of the Libertation Act. Where within time limited by law, no application is made under sub rule 1. The suit shall abate so far as the deceased plaintiff is concerned. And on the application of the defendant, the court may award him the cost which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff. So, if within time permitted by law, if no application is filed for including the suit shall abate. Rule 1 is the suit will abate if the right to sue does not survive. But rule 1 says that the death of the defendant shall not cause the suit to abate. If the right to sue survives. So, if the right to sue survives. So, and one of the parties dies. Rule 2, 3, 4 as the case may be applies. That distinction has to be made. In what cases rule 2 applies is when all the legal representatives are on the party. Then it is sufficient if they are recorded as the legal representatives. What is the time limit? No time. Can be done anytime. Rule 3, when the plaintiff or the sole surviving plaintiff, one of the plaintiffs or the sole surviving plaintiff dies. And all the legal representatives are not on the party area or no legal representatives are on the party. That means, somebody has to be made parties. Then that application has to be made within that within the time permitted by law, namely article 1 to D of the Education Act. Sub rule 2 says that whether within the time permitted by law, no application is made the suit shall abate. Now, rule 4. Rule 4 is where the defendant dies or a respondent dies or the sole surviving defendant or a respondent dies. It is almost same thing. But there is something headstrong. We will see. Rule 4, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendant 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 this. Who has to make the application? Plaintiff has to make that. That is clear from sub rule 3 where within time limited by law, no application is made under sub rule 1. The suit shall abate as against the deceased defendant. So, if the suit abates, it goes. So, the defendant dies. His LRs have to be brought on. The duty is that of the plaintiff. Defendant need not, defendant LRs need not do it because they are, they will be happy if you do not, if the plaintiff does not make the application. The suit will attend. Sub rule 2. Any person so made a party may make any defense, appropriate to his character as legal representative of the deceased defendant. Appropriate to his character. For example, a suit is filed for specific performance in an agreement to set an item of immoral property. A file says, suit against the defendant. B's defense is that B does not dispute the agreement. He says that, say, I have executed the agreement. But the plaintiff was not ready and willing to perform his part of the contract or he was not having consideration. In spite of the defendant's request, he did not comply with it, etc. And defense is made. When he died, his LRs are brought on record. Whose LRs? Defendant's LRs. They file an additional LRs statement and say, dispute everything. No, no, no. My father, our father has not executed the agreement. They cannot take it. They have to, they have to follow the same thing which their predecessors have taken. That is the meaning of this. A person so made a party may make any defense, appropriate to his character as legal representative of the deceased defendant. As a legal representative, what he can say. If the defendant, original defendant has not filed any LRs statement, immediately after receipt of no peace in the suit, he died. He did not get an opportunity to file a LRs statement. The legal representatives are included. They can take a defense appropriate to their, see, character as a legal representative. They cannot make their own defenses. They cannot make any separate claim, independent of the defendant. So, as legal representative of the defendant, what they can say, they can say. Then Sub rule 3, I have read. Sub rule 4, the court whenever it thinks spit, may accept to the plaintiff. From necessity of substituting the legal representative of any such defendant, who has failed to file the LRs statement, or who having filed it, has failed to appear and contest the suit and the hearing. And the judgment may in such case be pronounced against a defendant, notwithstanding the death of such defendant and shall have the same force and effect as if it had been pronounced before the death took place. Suppose in a given case, there are 50 defendants. The suit is contested, strongly contested by some of the defendants. Some of the defendants are not, they are not in the appearance. Having in the appearance, they have not filed the LRs statement. They are not interested. But the suit is being contested by others. Now, what is the use if the legal representatives are implanted? They cannot make a new case or a written statement is a, no written statement is filed, no defense is taken, no participation. Therefore, the court may think no use in making all these legal representatives as additional defendants. It is not necessary. They are not going to be affected. In such case, the court may dispense with the including of the legal representatives of the deceased defendant. But normally, the court will not, because the court will not take up that responsibility. Tomorrow, somebody will say that this is the void because the LRs are not involved and such defendants may be taken. Therefore, unless, see, the court will not take such a view, court will always go for the normal thing. Five, where the plaintiff was this special thing, where the plaintiff was ignorant of the death of a defendant and could not for that reason make an application for the substitution of the legal representatives of the defendant under the suit within the period specified in the limitation and the suit as in consequence abated. B, the plaintiff applies after the expiry of the period specified therefore in the limitation. For setting aside the abatement and also for the admission of that application under section five of that act on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the specified period specified in this act. The court shall in considering the application after the second section five have due regard to the fact of such ignorance if proved. Sometimes, the plaintiff may be ignorant of the death of a defendant and appeal is filed in the high court. Suit includes appeal, respondent eyes. Respondent is far away, he is in a similar there is no contact between the apparent and the respondent. The apparent is quite unaware of the death. He is not aware, nobody informed you. Then what happens? It is 90 days or even one year, two years may be over. No harm provided. It is proved that the plaintiff or appellant was unaware of the death of the defendant. The court may condone the delay. See, for example, A, file a suit against B. B is a proclaimed offender. His whereabouts are not known. The police is after him. He went underground. Police make search about it and it is notified or if he is abroad, red corner notice or blue corner notice, all those things are published. His whereabouts are not known. Police is tracing. In spite of all these facilities, the police could not find him out. How can the plaintiff know whether he is dead or alive? It may happen in some cases that the plaintiff may be ignorant of the death of the defendant. Sometimes two years, three years are over. Still it can be done. LRs can be included. The court has power to condone the delay under section 5 of the limitation provided that ignorance is proved by the plaintiff. That is, if proved, it can be done. These are the provisions. Rule 2, 3, 4. These are the, any of these provisions will apply if there is anything. Rule 2, 3 or 4. Date-to-day application. What will happen if within time it is not done? Abatement, then setting aside abatement, condonation of delay, etc. If what is the effect of abatement? Rule 9. Rule 9. Were a suit abated or is dismissed under this order? No fresh suit shall be brought in the same, on the same cause of action. This is the bar. A suit is filed. Defendant died. His LRs are not employed. Suit abates. The plaintiff cannot file another suit on the same cause of action. He cannot. His suit is barred. This is the rigor of not taking steps with it. Then sub rule 2, the plaintiff or the person claiming to be the legal representative of deceased plaintiff or the assigning or receiver of the case of an insolvent, apply for an order to set aside the abatement or dismissal. Dismissal in the word occurs in rule 8, that is insolvent series, where the receiver does not intend to prostitute in the suit to be dismissed. So, we need not be worried about the word dismissal. Abatement. Dead to day application abatement. Dismissal is with reference to rule 8. So, the plaintiff or the person claiming to be the legal representative of deceased, plaintiff or the assigning or receiver in the case of an insolvent plaintiff, may apply for an order to set aside the abatement or dismissal. And if he is proved that he was prevented by the sufficient cause for continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to cost or otherwise as things fit. The provisions of section 5 of the given application, that means condonation of the rule, the explanation, nothing in this rule shall be construed, nothing in this rule shall be construed as barring in a later suit, a defense based on the facts which constituted the cause of action of the suit which had abated or had been dismissed under this order. So, we have seen that abatement takes place, the consequences that on the same cause of action, the plaintiff will not be entitled to find another suit, a first suit. But it is made clear by an explanation which is added in certain by the amendment act of 1976 that this will not bar a defense to be taken, defense that may be taken by the plaintiff in a subsequent suit in which he is the defendant. So, the same condonation which he has put forward in the suit which has abated, that though precludes him from firing a suit on the same cause of action, that does not preclude him from taking that condonation as a defense when he appears as a defendant in a subsequent. This explanation was inserted because of conflicting decisions rendered by different high courts. So, it was thought by the parliament that an explanation is required to explain the position. So, normally the limitation act bars the remedy, not the right, all those things we have seen, it does not destroy the defense. Likewise, though there is a bar in instituting a fresh suit on the same cause of action, there is no bar in taking a defense on the same lines provided it figures as a defense. This is the effect. Then one more thing to be said at this stage, two more things, assignment. Say, a file says suit against me in respect of an item of immoral property. He is in pressing need for money. He wants to, he sold that item of property to a stranger. That stranger wants to continue or likewise the defendant has assigned the property to a stranger. Of course, section 52 of the transfer of property act is there. Dispendence is there, but subjective dispendence. Assignment can be done, but the court must grand leave to the party to continue the procedure. We will read rule 10. In the case of an assignment, creation of devolution or devolution of an interest during the pendency of a suit. The suit may by leave of the court be continued by or against the person to or upon whom such interest has come or devolved. By leave of the court, it is not as of right. It is the discretion of the court, but the court while granting that discretion or refusing that discretion need not make a detailed inquiry into the merits of the claim, not necessary. Whether it is supported by consideration, whether these and that, all those things need not be considered. Whether it is registered document is there, he is an assigning under the plaintiff or defendant as the case may be. Then he wants to come on record where it is bona fide, whether he can be allowed interest of justice that is required. That can be done. That does not necessarily mean that after the property has been assigned. So, during the pendency of the suit, the plaintiff assigns the property to a stranger. That does not mean that the plaintiff cannot continue the suit. Plaintiff can continue the suit for protecting the interest of his assignee. There is a wrong belief among even among litigants and even among lawyers that once the plaintiff transfers the property, his suit must go. It is not necessary. He can protect the interest of his assignee, transferee and continue the suit and appeal. But transferee to protect his interest by come on record. Only thing is that he has to get the leave of the court. That is the whole time. The suit may by leave of the court be continued by or against the person to or upon whom such interest has come or evolved. Now two, the attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub rule 1. So, on a normal, on a plain reading of it, one will not understand the meaning of it. What is it? The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling a person who procured such attachment to the benefit of sub rule 1. I will give an example if you want human lockdown, so that on a future date if you want to read and understand or some conclusion arises it can be made useful because on a plain reading it is difficult. A obtains a decree against B. Please note down, at least young friends you may note down. A obtains a decree against B. B files an appeal against that decree. C had obtained a decree against A. C had obtained a decree against A and the instance of C, the decree which A obtained against B can be attached under order 41 and order 21, rule 53, we have seen rule in the previous equations. C had obtained a decree against A. At least instance that decree is attached. That decree means decree which A obtained against B is attached. At the instance of C, the decree of A is attached. Decree of A is attached. In the appeal file by B, C can be implied. In the appeal file by B, C can be implied. Though he is not a transparent, right as devolved, some right as by attachment by itself will not create any right. That is the general rule. But it is made clear by a specific portion that if an attachment of a decree is made, the person who claims under that attachment, if his interest is affected, he can be made a party with the leave of the court. That is it. Please note it. A obtains a decree against B. B files appeal. C had obtained a decree against A. He attaches the decree which A obtained against B. Now, in the appeal file by B, C can be implied with the leave of the court. Now, if you read again, the attachment of a decree pending an appeal therefrom, pending an appeal therefrom, shall be deemed to be an interest entitling the person who procured such attachment C to the benefit of some rule of law. Clear? Clear. So, please note it. Because there are some provisions in the CPC which on a plain reading we will not address. See Garneshe proceedings attachment 33, all those things are difficult. So, but we have to sit tight, read, read, read and read between the lines and understand. With the help of even after reading some of the commentaries one will not one will not get an idea. Therefore, we have to say apply our mind constantly, concentrate on it and then again think, think and think then we will get an answer. Very few provisions, otherwise it is easy. Anybody can read and understand, anybody knows who knows something about litigation and read and understand. There is not much difficulty. Now, another portion which is of importance is rule 12. Rule 12. Rule 11 I read deploys to appease, deploys to appease. Rule 12 application of order to proceedings. Nothing in rules three, four and eight shall apply to proceedings in execution of a decree or order. What is the meaning of it? There also the words are very plain simple, but what is the meaning of it? Meaning is difficult to say. Nothing in rules three, four and eight shall apply to proceedings in execution of a decree or order. That means rule three and eight which speaks of abatement. Rules three and four which speaks of abatement. Eight is insolvency proceedings. Rules three and four speaks of abatement. That abatement will not apply to execution proceedings. In other words, if A has filed an execution petition against B, B dies or A dies. His legal representatives can continue the execution petition. There is no abatement if it is not done within 90 days, any time they can come or they can file another execution petition. Any time within time, within the time permitted, if it is article 136 which applies 12 years or article 133 years, before the expiry of the period of arbitration, 18 of our execution petitions can be filed. So, A filed an execution petition against B. Pending that A died, nothing happened within 90 days or 200 days or a one year or two years. It is reported by B that A is dead closed. Another execution petition can be filed by A's LRs. Likewise, B dies. A can file another execution petition against LRs of B. He need not take the risk of delay condonation and all those things. Sometimes the court may dismiss it. Why should you worry about it? A filed an execution petition against B. B died. After one year, an application is filed to make the legal representatives of B as parties. There is no question of any abatement. There is no question of any condonation of delay. There is no question of setting aside a week. Somebody may wrongly file an application. Support may wrongly dismiss it also. Why should we invite such difficulties? Because rule 3, 4 and 8 will not apply to execution procedures. At any time during the currency of the decree, at any time before it expires either under article 136 or 135 as the case may be executed. Any number of execution petitions can be filed. Today I am the decree holder. I can file an execution petition for arrest and detention of the jet manager. Today I can, tomorrow I can file another execution petition to attach and sell your the JD's property, jet manager's property. No harm. But the court may say simultaneous execution sometimes. It may not be possible to court may say until this is over you may keep it there. That is a discretion though. You cannot trouble the decree holder jet manager in such a way. Pressurize him like proceeding against the property, jail him, then proceed against the property. Who is there to defend? All these things the court may not permit simultaneous execution. That is different. But here this abatement business does not apply. Therefore there is no question of setting aside abatement. There is no question of contradiction. Please immediately note two decisions of rule 2. 1998, AER 1998 Supercom, AER 1998 Supercom, 1168, 1168. Parallel citation, 1998, 3 SCs, 148, 148. Name of the case is V Uttara Patti, V Uttara Patti versus Arshabh Ali, Arshabh Ali. These principles have been categorically stated in that Supreme Court judgment. So, if you read it rule 12 otherwise it is difficult to understand though the words are not difficult. There is no conclusion. But what is the meaning of it? That meaning will be clear if you read Uttara Patti's case. There is one more case you may not get it. That is a Kerala decision. I followed Uttara Patti's case and made the position. Again I simplified it and said that is in 2011 two Kerala law types, 2011 two Kerala law types, 248. I will not know the name of the case 248. In the course of time we will decide all the decisions that will come. Now another thing which I did not mention. A file is suit against B. B dies. B has wife and five children. One of the sons is already on the party area as second depend. Wife and five children that means total six LRs are there. Of who? One is already on the party area as second depend. Plaintiff makes an application after the death of the first defendant. That is after six months. Delay is there. Delay condonation etc. All those things setting aside abatement. Kusni is there abatement? The answer is there is no abatement. When one of the LRs is already on the party area there is no abatement. That is not by prohibition. That is by that is by decisions. If you read rule 3 and 4, 2, 3 and 4 you will get an idea that in order to have no abatement all the LRs must be on the party area. That is the idea if we carefully read 2, 3 and 4. But there are decisions of Supreme Court that one of the when one of the LRs is already on the party area. There is no abatement. That is side then decision. Immediately note that I will give other citations in next time. Yes, one of the LRs on the party area. There are Supreme Court judgments. I will cite it. One judgment you may note the ILR 2007 to Kerala. ILR 2007 to Kerala. Shot not 11. KLT also Kerala low types is 2007 to KLT 410 2007 to KLT 410. When one of the LRs are on the party area. Kurula vices deputy collector. I will give the citation of the Supreme Court judgments on that list I have prepared. Then after going through several Supreme Court judgments. The question which I put that is application is filed on the 200th day and one of Vidha's friends answered correctly 50 days. You will not get that answer if you read all the Supreme Court judgments which I give you now. I will give you in the course of time next week or next post day. So I will cite one decision for your consideration. That is ILR 2007 ILR 2007 one Kerala 550 550 it is reported KLT KLT Kerala low types as well 2007 one KLT 673 that is a decision that is a decision which was rendered by if you read that decision I am not claiming anything. You will understand the whole thing about this article 120 121 the various nuances of it and what are the procedural aspects one day and do it has to do how the delay is to be computed and all those things it will be clear if you read that decision. So I will prescribe that decision name of the case is Shankaran versus Shankaran versus Devaki Amma Shankaran versus Devaki. Decision for another party is also my name decision is also fine. Now another thing also to be noted I have provided notes where and I tried to search the decisions who want to do to how many decisions are there I have prepared only the decisions of Supreme Court which covers more than 50 pages I know more than 50 printed pages not tough decisions on that point of all Supreme Court. I will give you all this important decisions of Supreme Court not all all the important decisions of Supreme Court I have noted in the notes next time I will give it to you. Now sometimes dispute may arise as to whether a particular person is a legal representative or not sometimes it may arise question may arise whether the will which is produced by the legal so-called legal representative is genuine or not I will give an example. A file says vote against B, B dies, B's widow and children are there and they are implanted one of them say that he has got a will executed by the father in his favor the other enlarge disputed or the plaintiff dies. A stranger seeks to come on record as a legity as per a will executed by the plaintiff this is opposed by the defendant this is opposed by the personal legal legal areas of the plaintiff also who has to decide it there must be some forum to decide it the court has to decide it before proceeding with the suit and disposing of the case by and such a question may arise during the pendency of appeal normally the suit proceeded both parties were alive an appeal was filed by one of the parties deleted party during the pendency of the appeal somebody dies and all ours are sort to be implanted this execution of will who is the legal representative who is the legity under the will whether the will is genuine or whether there is it is initiated by any other initiating circumstances and all those things arise for consideration who is to decide it appeal court has to decide sometimes appeal court may find it difficult to decide it so it has got the power to direct the trial court to do it take evidence and then send the records to the appeal court take room five determination of question as to legal representation where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or deceased defendant such question shall be determined by the court clear provided where such question arises before an appeal court that court may before determining the question direct any subordinate court to try the question and to return the records together with evidence if a record and such trial is finding and reasons therefore that appeal court may take the same into consideration in determining the question so that question can be relegated to the trial court so that conveniently evidence can be taken sometimes there will be very strong contest about the execution of the will and all those things will has to be proved under section 68 of the evidence act will speaks from the grave and therefore special proof is required under section 68 of the evidence act sometimes all the question of the question of fabrication of the will all those things even after death of a party his fingerprint can be taken it is being done it is not a secret somebody dies he has got immense properties somebody takes his fingerprint and makes a will or his signature is forged all this happens for a person is suffering from instruments he does not know what it is see it is not the physical inability or incapability that matters it is the mental state of matters whether he is mentally capable to execute the whether he has got the disposing state of mind all these things come for inquiry detailed evidence may be required and therefore the appeal court may under rule 5 to direct the trial court to do it return its findings and evidence that will be taken to consideration by the appeal court and a decision will be rendered under rule 5 these are the provisions of order 22 which are required procedure rule 4 a procedure where there is no legal representative say administrator general notice can be given or anybody can be included the court will do it and then rule 6 no abatement by reason of death yes this is important rule 6 notwithstanding anything notwithstanding anything contained in the foregoing rules whether the cause of action survives or not please note whether the cause of action survives or not there shall be no abatement by reason of death of either party before the conclusion of the hearing 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 trial is over arguments are over he is posted for judgment at that time on the next day one of the parties dies is it necessary to implicate the legal representatives they can be implanted no harm suppose even if it is there not implanted that will not affect the judgment because by a fiction the court said the law presumes that he died on a date before that why what is the principle what is the purpose of implaning providing an opportunity of being heard audio trump partner so that process is over nobody is affected it is posted for judgment somebody dies lr's need not be the notice would go all these things must be kept pending the case will not be disposed of then again hearing them it is not necessary waste that is why this special portion is there so by a fiction and notwithstanding the death shall have the same force and effect as if it had been pronounced before the death took place so that fiction relates us to a date before the death what will happen if he died before that date on which the case is closed so it is as if they say and effect as if it had been pronounced before the death took place so before a date what will happen if the gentleman is pronounced before his death all right so the law presumes that the gentleman was pronounced on a date and he reared to the death of the party then rule 7 soot not awaited by marriage of the main party insolvency rule 8 other rules yes 10 a which was inserted by 1977 duty of the pleader to communicate to quote the death of the party whenever a pleader appearing for a party to the suit comes to know of the death of that party he shall inform the court about it and the court shall therefore give notice of such death to the other party and for this purpose the contract between the pleader and the deceased party shall be deemed to success so i am appearing for the plaintiff i came to know that the plaintiff died i know who are all the alas that is reported to me i have i have got a duty to inform the file and memo stating that the plaintiff died these alas are so and so or just a plaintiff died that is enough on such and such in form the court so that the duty of the see or a defendant died that is informed why he is at the gate then the duty of the plaintiff arises plaintiff has to take steps to believe he cannot say that he is unaware of the death you have seen under rule 44 a file a suit against b b died pending suit b is advocate reported to the court that b died his alas nothing happened then a files an application to employee he says that i i was not aware of the death of b he cannot say that because he is aware of the death it is reported to the court now how can they advocate see i am appearing for a party my party is no more the engagement ceases but for the purpose of rule 10 a it is deemed that that engagement continues by a deeming position dear friends these are all the provisions we will come to the decisions on the next class there are several it is of day to day importance please don't commit any mistake and allow the high court office or court office to criticize you must be aware of these provisions how to compute the delay period of limitation all those things you must be the astuteness in such things cannot be forgotten so thank you thank you very much because with the time i have closed sir naveen is asking if i have heard it correctly you said that if a decree has been passed the suit shall not abate there after if during the penance one of the party dies because the right has accrued to the decree holder but sir isn't an appeal what he said then he says sir isn't an appeal a continuation of the suit itself and even otherwise rule 11 says that order 22 applies to the appeals also now there i what i send is a suit is filed for deformation that does not survive on the death of the party death of the plenty but if the suit is decreed and an appeal is pending this cause of action still survives in favor of his legal documents because it is rights are crystallized it is an asset that is what i said difference which i have to point out is a filed a suit against p for compensation for deformation a dies during the pendency of the suit the suit abates because it is a quiet person it does not pass on to his loss that is not an asset which will devolve on his estate on the other hand if a suit is decreed that becomes an asset that becomes pass on to the estate it can be inherited and therefore um during the pendency of the appeal somebody dies this suit will not abate appeal will not abate because the even if it is a suit for compensation for deformation it has crystallized into a decree yes and there are supreme court judgments a suit is filed for deformation suit is dismissed appeal is there is a typical case a suit is filed for deformation compensation for deformation suit is dismissed appeal court decrees the suit high court reverses it and dismisses supreme court the matter goes during the pendency plane you dies the whole thing goes because there is no decree i will give that citation there is a supreme court judgment on exactly same suit is dismissed by the trial court but it was reversed and decree was passed by the appeal court but second appeal court dismissed the suit reverse the decree of the lower appeal court then the matter goes to supreme court supreme court says there is no decree therefore the cause of action that is the right to sue does not survive nothing to be inherited on the other hand if the suit was decreed and that decree was there at the time when he's when he died that will be inherited by the legal office yes mr vizas legal representative is defined legal here we know that a person who inherits as per the personal law of the parties legal representative is defined in section 211 211 legal representative means a person who in law represents the state of the deceased person and includes any person who inter meddles with the state of the deceased and where a parties who saw a suit in a representative character the person on whom the state devolves on the death of the party so it is not the personal legal representative always matters which i said a file a suit against b a dies a has got personal legal a's but a had executed a will in favor of x a stranger x can be pleaded because the state devolves on him he inter meddles with the state that is the difference between the legal air and the legal office a legal air is the legal representative normally but need not necessarily yes under rule 4 a it is defined as a personal representative is it different from a legal representative pardon he says under rule 4 a it is defined as a personal representative so what is the difference between personal representative and legal representative order 22 rule for a capital A for a procedure where there is no legal representative if it is it shall appear that the court may any party who had died during dependency the soup has no legal representative it is not personal it is a legal representative itself yes please elaborate the issue suit for declaration was out of several defendants one of the defendants has died and printed a file application in court that he can't fight against the defendant yes two years after two years after the death application is fired so an application for including application for setting aside a statement and application for control action of delay has to be fine how to be fine either three separate applications or three code three or one application one code three depends on the practice that is being followed by the current but these prayers must be please elaborate the issue for soup for declaration we are out of several defendants one of the defendants died and printed a file an application in the court that he can't fight the he can't find he has written fight against the defendant yes so his name be deleted he is free he is free to delete the file an application to delete the name of a party but that is his prerogative but what will happen what is the consequence of it nobody can say suppose he is deleted he is a proper party he is a necessary party the suit will go yes right thank you yes so we'll take next session we will tie up the yes same subject same subject I'll just tie up after the session yes and before we part for the tomorrow session so tomorrow we will be discussing on security for keeping peace and good behavior at a section 106 and 107 of CRPC Tuesday connected with us at 6 p.m. that is by S. Nagarajan ML district just going to thank you everyone stays