SHANKARAMMA Vs. NAGAR MANJAPPA

JUDGEMENT

(1.) This appeal was originally filled by three appellants, viz, Shankaramma, Sannamariyanna and Sannappa. The first appellant Shankaramma is reported to be dead subsequently, and the remaining appellants filled a memo stating that the right to sue survives to them and that they may be brought on record as legal representatives of the deceased first appellant. The office has put up a note stating that an application duly stamped is necessary and a mere memo seeking that relief is not sufficient. On the side of the appellants, it is contended by their learned Counsel that no application is necessary and that the memo filed is sufficient.

(2.) It appears to us that the view taken by the office is not correct and that the contention of the learned Counsel for the appellants has to be upheld. Order 22, Eule 2, C. P. C. runs thus:

(3.) In the present case, the first appellant is dead and the right to sue has survived to the remaining appellants. Both the conditions stipulated under Order 22, Eule 2, C.P.C. have been satisfied. In such cases, i.e., in cases where one of the plaintiffs or defendants dies and the right to sue survives, what is contemplated under Eule 2 of Order 22 is that the Court should cause an entry to that effect to be made on the record arid direct that the suit should proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. It does not contemplate an application in this behalf as is contemplated in Rules 3 and 4 of the same order. No question of abatement also arises in cases falling under Eule 2 of Order 22 C. P. C. These principles have been enunciated in Nankoo Ahir v. Bhagelu Ahir, A.I.R.1929 All. 347(1), Achutan Nair v. Manavikraman, A.I R. 1929 Mad. 152 and Himangshu Bhusan v. Manindra Mohan, A.I.R. 1954 Cal. 205. In view of the clear language used in Order 22 Rule 2 C.P.C.and the decisions referred to above, we are of opinion that no application is necessary to bring on record the L.Rs. of a deceased appellant or respondent when there are more than one and when the right to sue survives to the surviving appellant or appellants alone or against the surviving respondent or respondents alone.