The Court ruled that where all the aggrieved parties have jointly filed an appeal, the death of one of them attracts the provisions of Order 22 CPC. If the deceased party's legal representatives are not brought on record within the prescribed period, the appeal would abate in accordance with law.

The Court was hearing two connected Regular Second Appeals arising out of a property dispute. During the pendency of the appeals, one of the two appellants died. Although the surviving appellant continued to prosecute the appeals, the applications filed by the deceased appellant's legal representatives seeking their substitution were dismissed.

The principal issue before the Court was whether the surviving appellant could continue the appeals alone by invoking Order 41 Rule 4 CPC or whether the appeals had abated because of the failure to substitute the deceased appellant's legal heirs.

A Bench of Justice Sanjay Dhar answered the issue by holding,

"Rule 4 of Order 41 applies at a stage when an appeal is filed... However, once an appeal is filed by all the plaintiffs or all the defendants aggrieved by a decree, and one of the parties dies during the pendency of the appeal, the provisions of Rule 4 of Order 41 CPC would not come into play and the consequences of Order 22 CPC would follow."

The dispute related to two civil suits filed by the appellants claiming ownership and possession over ancestral property. During the trial, the parties entered into a compromise under which Commissioners were appointed to inspect, measure and identify the properties. The parties agreed to abide by the Commissioners' report. After considering the reports and the objections filed by both sides, the trial court passed a common decree deciding the rights of the parties.

The appellants challenged the decree before the first appellate court, but both appeals were dismissed. They thereafter filed Regular Second Appeals before the High Court. During the pendency of these appeals, one of the appellants died. Although the surviving appellant succeeded in getting the appeals restored after they had been dismissed for non-prosecution, the applications filed by the deceased appellant's legal representatives for setting aside the abatement and seeking substitution were rejected.

The surviving appellant argued that since both appellants had challenged the decree on common grounds, he was entitled to continue the appeals alone under Order 41 Rule 4 CPC. The respondents, however, contended that once the co-appellant had died and his legal representatives had not been brought on record, the appeals had abated under Order 22 CPC.

Court's Observations:

The Court first explained the object of Order 41 Rule 4 CPC. The provision enables one of several plaintiffs or defendants who are aggrieved by a decree passed on a ground common to all of them to institute an appeal against the entire decree, even if the remaining parties choose not to appeal. The rule is intended to avoid multiplicity of proceedings by allowing a single appeal to challenge a decree affecting all similarly situated parties.

The Court, however, drew a distinction between the filing of an appeal and events occurring after an appeal has already been instituted. It observed that once every aggrieved party has in fact joined as an appellant, Order 41 Rule 4 exhausts its role. Any subsequent death of a party is thereafter governed exclusively by Order 22 CPC, which prescribes the procedure for substitution of legal representatives and the consequences of failure to do so.

Justice Dhar then examined the scheme of Order 22 CPC, which governs the effect of the death of parties during the pendency of civil proceedings. It noted that these provisions apply equally to appeals and require the legal representatives of a deceased party to be brought on record where the right to sue does not survive exclusively in favour of the remaining parties.

The Court then considered whether Order 41 Rule 4 could override these provisions. It answered the question in the negative, explaining that the rule serves a limited purpose as it enables one among several plaintiffs or defendants to file an appeal against the entire decree where the decree proceeds on grounds common to all. However, once every aggrieved party has already joined in filing the appeal, the subsequent death of one of them is governed exclusively by Order 22 CPC, it emphasised.

Elucidating the crucial distinction between the two procedural regimes, the Court clarified that Rule 4 of Order 41 operates exclusively at the initial stage of instituting the appeal. The Bench went on to carve out an exception that where all the aggrieved parties on one side have jointly filed the appeal, the subsequent death of any one of them during the pendency shifts the legal paradigm entirely.

Observing that Rule 4 would no longer govern such a situation, the Court held, "...once an appeal is filed by all the plaintiffs or all the defendants aggrieved by a decree, and one of the parties dies during the pendency of the appeal, the provisions of Rule 4 of Order 41 CPC would not come into play and the consequences of Order 22 CPC would follow."

The Court further clarified,

"It is open to one of the plaintiffs or defendants to challenge a judgment or decree which proceeds on any ground common to all the plaintiffs or defendants. But once the appeal is filed, if one of the parties dies during its pendency, it becomes necessary to bring the legal representatives of the deceased party on record. If that is not done, the consequences prescribed under Order 22 CPC follow and the appeal would abate."

The Bench also relied upon the Supreme Court's decision in Sardar Amarjit Singh Kalra v. Pramod Gupta, reiterating that where the decree under challenge is joint and inseverable, continuation of the appeal after abatement against one of the appellants may result in conflicting decrees. In such cases, the appeal cannot proceed at the instance of the surviving appellant alone.

Holding that the decree in the present case was joint and inseverable, the High Court concluded that the surviving appellant could not continue the appeals after the legal representatives of the deceased appellant failed to come on record.

“Accordingly, the appeals are dismissed as having abated”, the court concluded.

Case Title: Gulam Ahmad Raina & Anr. v. Mst. Hameeda Akhtar & Ors.

Citation: 2026 LiveLaw (JKL) 326

Counsel for the Appellants: Mr. Sheikh Hilal, Advocate, with Ms. Shaziya Kamal, Advocate

Counsel for the Respondents: Mr. Altaf Haqani, Senior Advocate, with Mr. Asif, Advocate

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