Code of Civil Procedure, 1908: O.XXII, r.5 – Impleadment of legal representative in pending appeal – High Court allowing impleadment applications preferred by rival contenders entitling both the contenders to raise their respective arguments in subject matter of suit without determining as to who is the actual legal representative of the deceased – Propriety of – Held: When a question arises before the Court in a pending matter as to who will come on record as the legal heir of the deceased, the Court shall, before proceeding to decide with the substantive issues involved in the case, first and foremost, shall decide who is the legal representative of the deceased – Without doing so, the Court cannot proceed with the disposal of the case on hand – At the same time, the Court cannot make all the contenders as parties – The aspect of deciding legal representative cannot also be postponed with a view to decide the same at the time of final disposal of the appeal on merits – The statute has clearly mandated that if the question of deciding the legal representative of a legatee arises before an appellate Court, it may direct the subordinate Court to make enquiries by leading evidence if any through the process of trial and record its finding as to who is the legal representative – After considering the finding recorded by the trial Court, the appellate Court can decide and bring on record the legal representative of the deceased – Matter remitted to High Court for determining the issue as per provisions of O.XXII, r.5 of the Code. Allowing the appeals and remitting the matter to High Court, the Court
HELD: 1. The issue of bringing on record the legal representative in a pending appeal has to be dealt with in a when a question arises before the Court in a pending matter as to who will come on record as the legal heir of the deceased, the Court shall, before proceeding to decide with the substantive issues involved in the case, first and foremost, shall decide who is the legal representative of the deceased manner prescribed under the provisions of Order XXII, Rule 5. When a question arises before the Court in a pending matter as to who will come on record as the legal heir of the deceased, the Court shall, before proceeding to decide with the substantive issues involved in the case, first and foremost, shall decide who is the legal representative of the deceased. It is also well settled that when a party dies at the stage of second appeal and there are rival contenders claiming to be the legal representatives of the deceased, as in the present case, there is a burden cast upon the Court to first decide as to who is the legal representative of the deceased. Without doing so, the Court cannot proceed with the disposal of the case on hand. At the same time, the Court cannot make all the contenders as parties. The aspect of deciding legal representative cannot also be postponed with a view to decide the same at the time of final disposal of the appeal on merits.[Para 10] [526-H; 527-A-C]
2. It is indisputable that the procedural laws are meant to advance justice. A procedure contemplated under the code which is mandatory in nature shall not be skipped or ignored by the Courts. Whereas, in the instant case, the High Court’s approach has diluted the purport of Order XXII, Rule 5 of the CPC. [Para 11] [527-E-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.