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Report No. 27

Order XXII, rule 4 and legal representatives not traceable

A suggestion received from the Calcutta High Court for the insertion of a provision to deal with cases where the legal representative of a deceased party is not traceable has been considered. Reference may, in this connection, be made to Order XVI, rule 46 of the Rules of the Supreme Court, now Order XV, rule 15 of the R.S.C. Revision (1962). The adoption of a somewhat similar provision was suggested in a judgment of the Calcutta High Court1 also, and the suggestion was repeated in another case.2

The English rule is intended to cover two cases; first, where litigation is intended to be started but there is no "personal representative", and secondly, where litigation has already started and then a party dies and there is no personal representative. History of the English rule is discussed in a recent case3. The under-mentioned authorities4-5 discuss the practice under the English rule.

It is, however, considered that such cases would not be many, and, therefore, the suggested provision need not be inserted.

1. William Harold Gibbs v. Deba Prasad Roy, (decided on 17-3-1950), 85 CLI 280.

2. In the Goods of Golam Nabi Maggo, dated 15-5-1961.

3. Pratt v. London Passenger Transport Board, (1937) 1 AER 473 (478) (Court of Appeal).

4. Lean v. Alston, (1947) I AER 261.

5. Halsbury, 3rd Edn., Vol. 16, pp. 121, 134, 292 (and Vol. 9, p. 176 or County Courts).

Order XXII, rule 5

This follows local Amendments1. The object is to enable an appellate court to direct a subordinate court to enquire into, and give its findings on, disputes as to who is legal representative of a deceased party.

1. Cf. the amendments made by the High Court of Madras, etc.

Order XXII, rule 12

The Allahabad Amendment to Order XXII, rule 12 provides that the rules relating to abatement shall not apply to proceedings after the preliminary decree. Actually this is the position according to the decisions of the most High Courts1-2, and the Allahabad Amendment seems to have been necessitated by the fact that that High Court3 took a different view.

In view of the opinion of the majority of the High Courts, the amendment need not be adopted.

1. See Bapu v. Gulab, AIR 1929 Nag 142 (FB).

2. Bhusan v. Chhabi Mont, AIR 1948 Cal 363 (reviews case-law).

3. Mahabu v. Narain, AIR 1931 All 490 (FB).

Code of Civil Procedure, 1908 Back

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