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TMI Blog1985 (11) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... laneous Petition No. 43065 of 1985 to bring them-selves and the other grand-son and grand-daughter on the record of the Appeal in place of the Appellant. As the said application was filed beyond time, they filed another Civil Miscellaneous Petition, namely, Civil Miscellaneous Petition No. 43066 of 1985, to condone the delay and to set aside the abatement of the Appeal. The question which falls to be determined is whether by reason of the very fact of the death of the Appellant the Appeal has abated, because if it has, the question whether the delay in filling the two applications for substitution and for setting aside the abatement of the Appeal by reason of the expiry of time should be condoned will not arise. The facts material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e death of the plaintiff. Under Rule 3 of Order XXII, where a sole plaintiff dies and the right to sue survives, the court on an application made in that behalf will cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit, If, however, no application in that behalf is made within the time prescribed by law, the suit will abate. Under Rule C(2), the court may set aside the abatement of the suit on the application of the person claiming to be the legal representative of the deceased plaintiff if he proves that he was prevented by any sufficient cause from continuing the suit. Clause (11) of section 2 of the Code defines legal representative as meaning inter alia a person who in law represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Act, 1934, all causes of action vested in a person survive for the benefit of his estate except causes of action for defamation or seduction which abate on the death of such person. As the Law Reform (Miscellaneous Provisions) Act, 1970, abolished the right of action for seduction of a spouse or a child from January 1, 1971, the only cause of action which would abate in England on the death of a person suing would be now a cause of action for defamation. So far as this country is concerned, which causes of action survive and which abate is laid down in section 306 of the Indian Succession Act, 1925, which provides as follows : 306. Demands and rights of action of or against deceased survive to and against executor or ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit or detriment to the estate of the plaintiff- respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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