No abatement of suit in case of death of a party if right to sue survives

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., dismissed a writ petition filed against the order of the trial Judge, whereby petitioner’s application seeking abatement of partition suit on the ground of death of one of the defendants was rejected.

The main issue that arose before the Court, in this case, was ‘whether the suit can be abated in case of death of either party.’

The High Court observed that Order 22 Rule 1 CPC specifically states that the suit cannot be abated on account of death of either party if the right to sue still survives. There are different procedures given under Rules 1, 2 and 4 of Order 22 CPC which talk about the death of a party, death of one of several plaintiffs or defendants but survival of right to sue and death of one of several defendants or of sole defendant respectively.

The Court held that from a bare perusal of different provisions laid down under Order 22  CPC, it can be reasonably concluded that in cases where either of the party dies but the right to sue survives, there shall be no abatement of suit. Observing that the case of the petitioner falls within the ambit of Order 22 Rule 1, it was held that the application of the petitioner for abatement of the suit had been rightly rejected by the lower court. Hence, the writ petition was dismissed. [Radhu Napit v. Tarapdo Napit,   2018 SCC OnLine Jhar 635, dated 16-07-2018]

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