By operation of Order XXII, Rule 4 read with Rule 11 of Civil Procedure Code, when one of two or more defendants died and the right to sue does number survive against the surviving defendant or defendants alone, 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 the suit.
The respondent had filed the suit for redemption of unufructuary mortgage dated 15th Awarded 1321 Fasli, 1912 A.D., hypothicated for a sum of Rs.
Indisputably, the gift deed executed by the donor in favour of the respondent donee clearly mentioned the mortgage and made a part of the deed of gift.
The High Court in second appeal, held that the mortgagee acknowledged the mortgage and that, therefore, limitation starts running from the date of the acknowledgment by the respondents predecessors in interest which would give fresh cause of action for filing a suit for redemption and possession.
Thereby a preliminary decree for redemption was granted giving appropriate time to the mortgagor to deposit the amount in the companyrt by decree dated April 29, 1979.
Within 60 days after the expiry of 90 days, under Art.
719 of 1970 dated February 21, 1979.
5 died in the year 1987.
The trial companyrt dismissed the suit as being barred by limitation.
1 died in July, 1984 and the appellant No.
It the joint and inseverable decree of redemption granted in favour of respondents, which was questioned in the appeal.
After the expiry of 90 days, the appeal stands abated unless the appeal survives against the surviving appellants.
1 and 5 on record.
Admittedly, numbersteps have been taken to bring the legal representatives of appellant Nos.
Thus at the appellate stage also the legal representatives of the deceased respective appellants and the respondents should be substituted as the LRs.
Rule 11 postulates the applicability of this Order to appeals.
When that decree of redemption against appellants No.
As far as may be the word plaintiff should be held to include an appellant, the word defendant a respondent, and the word suit and appeal.
9200/ OS.
Thus this appeal by special leave.
On appeal, it was companyfirmed.
Pending the appeal, the appellant No.
Substitution is allowed.
by their predecessors in interest.
of the respective appellants respondents.
