# http:\\allahabadhighcourt.nic.in v. Pooran Singh and others

- **Citation:** (2004) 1 ILRA 151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-01-12
- **Case number:** First Appeal No. 1256 of 2003
- **Bench:** A.K. Yog, V.N. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/http-allahabadhighcourt-nic-in-v-pooran-singh-and-others-40312
- **Pages:** 12

## Headnote

(A) Code of Civil Procedure 1 Section 2
(1)-readwith
Order
22
words
and
Phrases-Legal Representative-a person
who
representates
the
estate
of
deceased-who steps in to the shoes of
Original deceased party-the term legal
representative held very wide-as used-
Held- Para 7, 10 & 12

The
Definition
of
the
term
'Legal
Representative' contained in 2 (11) of
the
Code
of
Civil
Procedure,
is
unequivocal. 'Legal Representative' is a
person who in law represents the 'estate'
of the deceased person.

According to the definition, it includes a
person, who in law represents estate of
deceased person. Definition in this Court
denotes that those class of persons on
whom the status of a representative is
fastened by reason of death, whose
estate they are held to represent (See
A.I.R. 1929 Oudh 353-DB).

A 'legal representative' steps into the
shoes of an original deceased party, who
died during pendency of a proceeding
and only represents the estate of the
deceased.
He
is
to
continue
the
proceedings as could have done by the
deceased,
in
whose
place
he
is
substituted as his 'legal representative'.
It
is
also
well
settled
that
legal
representative
can
contest
a
suit/proceeding only on the basis of
'cause
of
action',
on
which
suit/proceeding was contested by the
deceased party and not beyond it.
Case law discussed:
AIR 1940 Alld. 99
AIR 1949 Alld. 604 D.B.
AIR 1929 Oudh-353-D.B.

(B) General Rule (Civil)-rule 37 readwith
Code of Civil Procedure-Order 22 r.3, 4,
Order 1 rule 10 (2)-The Party once on
record-even if dead-has to continue-the
legal representative shall be further
made party-after making note to the
effect.

Held- Para 14

On the contrary Section 37 General Rules
(Civil) read with Order 22 R 3 & R 4
C.P.C.
in
an
un-ambiguous
manner
provides
that
when
a
party
dies
pendentelite, to make a note to that
effect to be added against the name of
that deceased party and heirs (Correctly
Legal Representatives) of deceased party
to be substituted as given therein. Word
"Struck Out" has been used in Order 1
Rule 10 (2) C.P.C., but avoided in Order
22 Rule 3 & Rule 4 C.P.C. It shows that
party once on record, even if dead, has
to continue and a note of the fact is to be
made. If Legal Representatives are to be
brought on record, they shall be further
made party (see Order 22 Rule 3) as
provided under Rule 37 General Rules
(civil).

(C) Practice Procedure and General Rule
(Civil) Rule 37- substitution application
with prayer for deletion/striking of or
washing off the name of deceased partyheld-misconceived,
untenable-not
approved by law.

Held

## Text

http:\\allahabadhighcourt.nic.in
1 All] Suresh Kumar Singh V. The State of U.P. and others
151
that there was a proposal to amend the
rule, which is still pending before the
State Government and the rule has not
been amended so far;
(2) Apart from Sri Vinay Khare, Sri
Zameer Ahmad and Km.Manju Trivedi
were also the affected persons by the
same decision of the Commission, which
was challenged by Vinay Khare and they
have also challenged their non-selection
before the Lucknow Bench of this Court
by means of two writ petitions nos. 1247
(SB) of 1992 and 1289 (SB) of 1993 and
both these writ petitions were allowed by
a Division Bench (LKO)on 19.04.1994
holding that in a case where equal marks
are secured by two or more candidates,
their names are to be placed in the list in
order of merit on the basis of their marks
obtained by them in the interview. The
decision of the learned single judge In
Vinaly Khare's case was also overruled
by the Bench.

(3) Although
judgment
of
the
Division Bench (LKO) in Km. Manju
Trivedi's
case
was
delivered
on
19.04.1994, but it was not brought to the
notice of the Bench hearing the appeal ,
filed by the Commission against the order
of the learned Single judge in Vinaly
Khare'case, although the appeal was
decided on 14.07.1994. Judgment of the
Special Appeal Bench was thus given in
ignorance of the decisions of the Division
Bench in Km. Manju Trivedi's case.

9. No benefit can be taken from
Rule 14 (4) of the Uttar Pradesh Civil
Service (Executive Branch) Rules, 1982
and Rule 17 of the Collection Amins
Service Rules, 1974 as, in the present
case, there is no such provision in Rule 19
of the Rules of 1944. The State
Government has not amended the Rule 19
of the Rules of 1944 in the light of the
aforementioned Rules. Till such time it is
not modified, merit list is to be prepared
on the basis of marks obtained in the
interview wherein general suitability of
the service is seen.

10. So far as the question as to
whether the select list continues to remain
valid for a period after one year is
concerned, it may be mentioned here that
, in the absence of any specific provision,
the select list is treated valid for a period
of one year. Reliance placed by the
learned counsel for the petitioner on the
government Order dated 25th March, 1985
is misplaced. In the case of Neel Kanth
Tripathi (supra) this Court has held that
all Government Orders have prospective
effect unless otherwise directed. The
Government Order No.28/5/1980 Karmik1 dated 15 July, 1982 had specifically
provided that the period of one year is the
life of the select list. The U.P. Public
Service Commission, Allahabad had sent
its recommendation on 27th july, 1982 and
the life of the select list stood exhausted
after one year.

11. In view of the foregoing
discussions, I do not find any merit in this
petition. It is dismissed. However , the
parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2004

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE V.N. SINGH, J.

First Appeal No. 1256 of 2003

New
Okhla
Industrial
Development
Authority

...Appellant
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152
Versus
Pooran Singh and others ...Respondents

Counsel for the Appellant:
Sri Anurag Khanna

Counsel for the Respondents:

(A) Code of Civil Procedure 1 Section 2
(1)-readwith
Order
22
words
and
Phrases-Legal Representative-a person
who
representates
the
estate
of
deceased-who steps in to the shoes of
Original deceased party-the term legal
representative held very wide-as used-
Held- Para 7, 10 & 12

The
Definition
of
the
term
'Legal
Representative' contained in 2 (11) of
the
Code
of
Civil
Procedure,
is
unequivocal. 'Legal Representative' is a
person who in law represents the 'estate'
of the deceased person.

According to the definition, it includes a
person, who in law represents estate of
deceased person. Definition in this Court
denotes that those class of persons on
whom the status of a representative is
fastened by reason of death, whose
estate they are held to represent (See
A.I.R. 1929 Oudh 353-DB).

A 'legal representative' steps into the
shoes of an original deceased party, who
died during pendency of a proceeding
and only represents the estate of the
deceased.
He
is
to
continue
the
proceedings as could have done by the
deceased,
in
whose
place
he
is
substituted as his 'legal representative'.
It
is
also
well
settled
that
legal
representative
can
contest
a
suit/proceeding only on the basis of
'cause
of
action',
on
which
suit/proceeding was contested by the
deceased party and not beyond it.
Case law discussed:
AIR 1940 Alld. 99
AIR 1949 Alld. 604 D.B.
AIR 1929 Oudh-353-D.B.

(B) General Rule (Civil)-rule 37 readwith
Code of Civil Procedure-Order 22 r.3, 4,
Order 1 rule 10 (2)-The Party once on
record-even if dead-has to continue-the
legal representative shall be further
made party-after making note to the
effect.

Held- Para 14

On the contrary Section 37 General Rules
(Civil) read with Order 22 R 3 & R 4
C.P.C.
in
an
un-ambiguous
manner
provides
that
when
a
party
dies
pendentelite, to make a note to that
effect to be added against the name of
that deceased party and heirs (Correctly
Legal Representatives) of deceased party
to be substituted as given therein. Word
"Struck Out" has been used in Order 1
Rule 10 (2) C.P.C., but avoided in Order
22 Rule 3 & Rule 4 C.P.C. It shows that
party once on record, even if dead, has
to continue and a note of the fact is to be
made. If Legal Representatives are to be
brought on record, they shall be further
made party (see Order 22 Rule 3) as
provided under Rule 37 General Rules
(civil).

(C) Practice Procedure and General Rule
(Civil) Rule 37- substitution application
with prayer for deletion/striking of or
washing off the name of deceased partyheld-misconceived,
untenable-not
approved by law.

Held- Para 17

It, therefore, naturally follows that in an
application for substitution of L. Rs.
prayer
for
deletion/striking
off/or
washing off/to erase/removal of the
name of 'deceased party' on record, is
misconceived,
untenable
and
not
approved in law, prayer to the above
effect in the amendment application for
substitution
of
L.Rs.
is
totally
misconceived and cannot be legally
allowed. It is not permissible in law to
erase the name of original deceased
party and to do the contrary is also
being uncalled for.
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1 All] New Okhla Industrial Development Authority V. Pooran Singh and others
153

Code of Civil Procedure-Order 5 Rule I
Practice
&
Procedure-Circulardt.11.1.52-
Parties
themselves
responsible for necessary amendments-
in terms of Court Order-duly checked by
the office giving reference of the Order
passed
by
the
Court-same
practice
should be followed by High Court also.

Held- Para 20

We are of the opinion that similar
instructions to be followed with no
exception in the matters pending in High
Court. It is to be noted that there is a
long standing practice of continue not
omitting name of and to the name of
'deceased party' as is evident from the
manner parties are described in the
cases reported in the Law Journals. For
convenience, some instances of such
description of parties are given below:-

(Delivered by Hon'ble A.K Yog, J.)

1. When the aforesaid First Appeals
were presented before Court, the Bench
Secretary pointed out the objection noted
by Stamp Reporter, apart from other
notings, which read, "Parties not properly
described"

Learned counsel for the appellants,
Sri Anurag Khanna, Advocate, seeks to
challenge the aforesaid objection made by
the Stamp Reporter of the Court.

2. Since the aforequoted objection
by the Stamp Reporter was not clear,
Court sent for the Stamp Reporter Sri
Harish Chandra Srivastava, who has
appeared before the court and explained
the noting. It is submitted by the Stamp
Reporter that the objection was made for
the reason that the name of the deceased
party was not to be shown in the appeal as
the said party has died and of the names
of the 'Legal Representative,' brought on
record, alone are to be mentioned in the
array of parties in the memo of appeal
irrespective of and not withstanding that
name of original party is described with a
note
'Since
Dead
Through
Legal
Representative'.

3. In aforementioned First Appeal
No. 1239 of 2003, We find that trial court
while preparing decree omitted to indicate
the name of the original deceased party in
the description of parties and instead
described the legal representatives by
showing them as 1//1 and 1/ 2. However,
on the folio attached to the 'Decree' there
is a stamp with entries filled in the hand-
wherein the description of the case-is
"LAR 249/96 Khacheru Vs. Sarkar
Hoshiarpur" instead of The Collector,
Ghaziabad). This shows that the case is
still identified by the name of Khacheru,,
the deceased party, but in the decree his
name has been completely removed/
erased and only L.Rs. are mentioned as 1/
1 & 1/ 2. The appellants, however, in the
Memo of Appeal, on his own, supplied
name of the deceased original party,
whose
'legal
representatives'
were
brought on record. As per the Stamp
Reporter, learned counsel cannot mention
the name of original party, who has died,
after L.Rs. have been brought on record
and mentioned in the array of parties. In
all other First Appeals mentioned above,
trial court decree contains the name of the
party who had died and shown to be
represented by the L.Rs . Learned counsel
for Appellant described the parties as per
the decree. Stamp Reporter, however,
made an objection on indicating the name
of deceased original party on the pretext
(as disclosed in Court) that name of dead
person cannot be given in array of parties
as no notice can be sent to a dead person.
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4. The context of the above, an
interesting procedural issue is in contest.

At the first glance, 'issue' may
appear simple and innocuous, but in our
considered opinion if it is viewed
seriously and in depth, it is certainly not.
The
issue
is
of
multi-dimensional
complexities.

5. The Court is thus called upon to
decide the question,' whether name of a
party, whether plaintiff or defendant, can
be deleted/ erased/ washed off removed,
in case of death and/ or while substituting
legal representatives of such deceased
party ?

6. To appreciate aforesaid question,
reference be made to the following
provisions of the of Civil Procedure,
General Rules (Civil) framed by the High
Court of Judicature at Allahabad in
exercise of powers conferred by Article
227 of the Constitution of India and
section 122 of Code of Civil Procedure,
with previous approval of Govt. of Uttar
Pradesh and Rules of Court, 1952, framed
by the High Court of Judicature at
Allahabad in exercise of powers conferred
under Article 225 of the Constitution of
India.

Code of Civil Procedure

Sec. 2(11). "Legal Representative"
means a person who in law represents the
estate of a deceased person, and includes
any person, who intermeddles with the
estate of the deceased and where a party
sues or is sued in a representative
character the person on whom the estate
devolves on the death of the party so
suing or sued.

Section 33. Judgment and decree -
The Court, after the case has been heard,
shall pronounce judgment, and on such
judgment a decree shall follow.

Section 50. Legal Representative:-
(1) Where a judgment- debtor dies before
the decree has been fully satisfied, the
holder of the decree may apply to the
Court which passed it to execute the same
against the legal representative of the
deceased.

(2) Where the decree is executed
against such legal representative, he
shall be liable only to the extent of the
properly of the deceased which has come
to his hands and has not been duly
disposed of; and for the purpose of
ascertaining such liability, the Court
executing the decree may of its own
motion or on the application of the decree
-holder compel such legal representative
to produce such accounts as it thinks fit.

Section 52. Enforcement of decree against
legal representative (1) Where a decree is
passed against a party as the legal
representative of a deceased person and
the decree is for the payment of money out
of the property of the deceased, it may be
executed by the attachment and sale of
any such property.

Order I Rule 10

10. Suit in name of wrong plaintiff-
(1)..................

(2) Court may strike out or add
parties- The Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
terms as may be appear to the Court tobe
just, order that the name of any party
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1 All] New Okhla Industrial Development Authority V. Pooran Singh and others
155
improperly joined, whether as plaintiff or
defendant, be struck out and that the name
of any person who ought to have been
joined, whether as plaintiff or defendant,
or whose presence before the Court may
be necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions involved
in the suit, be added.

(3)...................

Order VII

Particulars to be contained in plaint-
The plaint shall contain the following
particulars:-
(a)the name of the Court in which the suit
is brought;
(b)the name, description and place of
residence of the plaintiff;
©the name, description and place of
residence of the defendant, so far as they
can be ascertained.
(d)Where the plaintiff or the defendant is
a minor or a person of unsound mind, a
statement to that effect;
(e)the facts constituting the cause of
action and when it arose;
the facts showing that the Court has
jurisdiction;
(f)the relief which the plaintiff claims;
(g)where the plaintiff has allowed a set off
or relinquished a portion of his claim, the
amount so allowed or relinquished; and
(h)a statement of the value of the subject
matter of the suit for the purposes of
jurisdiction and of Court fees , so far as
the case admits.

Order XX

"Rule 21. (1) Every decree and order
as defined in section 2, other than a
decree or order of a Court of Small
Causes or of a Court in the exercise of the
jurisdiction of a Court of Small Causes,
shall be drawn up in the Court
vernacular, or in English, if the Court so
orders. As soon as such decree or order
has been drawn up, and before it is
signed, the Munsarim shall cause a notice
to be pasted on the notice board stating
that the decree or order has been drawn
up, and that any party or the pleader of
any party may, within six workings days
form the date of such notice, peruse the
draft decree or order and may sign it or
may file within the Munsarim an objection
to it on the ground that there is in the
judgment a verbal error or some
accidental defects not affecting a material
part of the case, or that such decree or
order is at variance with the judgment or
contains some clerical or arithmetical
error. Such objection shall state clearly,
what is the error, defect or variance
alleged, and shall be signed and dated by
the person making it.

(2) If any such objection be filed on
or before the date specified in the notice,
the Munsarim shall enter the case in the
earliest weekly list practicable, and shall,
on the date fixed, put u[p the objection
together with the record before the Judge
who pronounced the judgment or, if such
Judge has ceased to be the Judge of the
Court, before the Judge then presiding.

(3) If no objection has been filed on
or before the date specified in the notice,
or if an objection has been filed and
disallowed, the Munsarim shall date the
decree as of the day on which the
judgment was pronounced and shall lay it
before the Judge for signature in
accordance with the provisions of rules 7
and 8.

(4) If an objection has been duly filed
and has been allowed, the correction or
altercation directed by the Judge shall be
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made.
Every
such
correction
or
altercation in the judgment shall be made
by the Judge in his own handwriting. A
decree amended in accordance with the
correction or alteration directed by the
Judge shall be drawn up, and the
Munsarim shall date the decree as of the
day
on
which
the
Judgment
was
pronounced and shall lay it before the
Judge for signature in accordance with
the provisions of rules 7 and 8.

(5) When the Judge signs the decree,
he shall make an autograph note stating
the date on which the decree was signed.

Order XXII

Rule 2. Procedure where one of
several plaintiffs or defendants dies and
right to sue survives: -Where there are
more plaintiffs or defendants than one,
and any of them dies, and where the right
to sue survives to the surviving plaintiffs
or plaintiffs alone, or against the
surviving defendant or defendants alone,
the Court shall cause an entry to that
effect to be made on the record and the
suit shall proceed at the instance of the
surviving plaintiff or plaintiffs, or against
the surviving defendant or defendants.

Rule 3. Procedure in case of death of
one of several plaintiffs or of sole
plaintiff:- (1) Where one of two or more
plaintiffs dies and the right to sue does
not survive to the surviving plaintiff or
plaintiffs alone, or a sole plaintiff or sole
surviving plaintiff dies and the right to
sue survives, the Court, on an application
made in that behalf , shall cause the legal
representative of the deceased plaintiff to
be made a party and shall proceed with
the suit.

(2)............

Rule 4. Procedure in case of death of
one of several defendants or of sole
defendant: (1) Where one of two or more
defendants dies and the right to sue does
not
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.

(2).............

(3)............

(4) The Court whenever it thinks fit,
may exempt the plaintiff from the
necessity
of
substituting
the
legal
representatives of any such defendant,
who has failed to file a written statement
or who, having filed it, has failed to
appear and contest the suit at the
hearing; and judgment may, in such case,
be pronounced against the said defendant
notwithstanding
the
death
of
such
defendant and shall have the same force
and effect as it if has been pronounced
before death took place.

General Rules (Civil)

"Rule 37. How to make amendment
in pleadings-- (i) An application for
amendment made under Order I rule 10,
Order VI Rule 17 or Order XXII of code
shall also contain a prayer for all
consequential amendments. The presiding
officer shall reject the application if it is
not in accordance with law or these rules.

(ii) When a party dies pendente lite a
note to that effect shall be added against
the name of the party and necessary
consequential amendment in the body of
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the petition or pleading shall also be
made as prayed for.

(iii) When the heirs of a deceased
party are substituted for him, they shall be
entered and numbered as follows.
If the serial number of the deceased party
was say "3" his heirs will be numbered as
3/1,3/2,3/3 and so on.

If the party numbered as 3/1 as dies,
his
heirs
will
be
numbered
as
3/1/1,3/1/2,3/1/3 and so on.

Rule
90.
Mode
of
recording
Judgment:-
Judgment
shall
be
on
foolscap paper one quarter page being
left blank. To each judgment shall be prefixed a heading specifying the number of
the case the names of all the parties.

..........................."

Rule
95.
Decree
to
contain
addressed filed by the parties.- Every
decree or formal order must contain the
names and addresses of the parties, as
given in the plaint as also the addressed
filed subsequently. The words, 'non-
contesting', shall also be written in a
bracket against the name of such
defendant as has not appeared or has not
filed a written statement or after having
filed written statement has failed to
appear and contest the suit at the hearing,
as referred to in Order V Rule 4-A and
Order XXII Rule (4)(4).

Rule
96.
Decree
to
be
self
contained--- Every decree and order as
defined in Section 2 of the Code shall be
drawn up in such a manner that in order
to the understanding and execution
thereof, it may not be made part of the
decree or order.

Prescribed form of decrees-In all
cases in which the form of a decree, has
been prescribed or indicated by statute,
the decree shall be prepared as far as
possible, in the form so prescribed"

Appendix A of First Schedule,
attached to the Code of Civil Procedure
contains prescribed form and for drawing
a decree and it must contain 'title' which
means full particular of the parties,
parentage and addresses as given in the
plaint followed in the judgment

Rules of the Court, 1952 ( Framed by
Allahabad High Court )

Chapter VII

Rule 6. Preparation of decree or
formal order:- After a suit or a
proceeding in the nature of a suit or an
appeal from a decree has been heard and
decided, a decree shall follow the
judgment. In other cases, unless otherwise
ordered a formal order shall follow the
order finally disposing of the case or any
order by which costs have been awarded.

Rule 8. Contents of decree or formal
order --- (1) The decree or formal order
shall be drawn up in the language of the
court and shall bear date of the day on
which the judgment or order upon which
it is founded was delivered.

{ provided that Hindi may be used in
place of English, on optional basis, in any
judgment, decree or order to be passed by
the Court. Such judgment, decree or order
shall be accompanied by an authorized
English translation thereof }

(2) It shall contain the nature,
number and year of the case, the names
and descriptions of the parties, the names
of
their
Advocates
and
a
clear
specification of the relief granted or other
adjudication made.
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(3) It shall state the amount of costs
incurred in the case and by whom and in
what proportions such cost and costs in
the courts below, if any, are to be paid.

Rule 9. Notice of decree or formal
order for objection:- As soon as the
decree or formal order has been drawn
up the Registrar shall cause to be
exhibited on the notice board a notice
stating that the decree or formal order
has been drawn up. The notice shall
further state that any party to it or his
Advocate may on or before a date to be
specified in the notice persue the same
and sign it or file with the Registrar an
objection thereto on the ground that there
is a clerical error or omission in the
decree or formal order or that it is not in
accordance with the judgment or order
upon which it is founded. Such objection,
if any, shall state clearly what the alleged
clerical error or omission is or in what
respect the decree or formal order is not
in accordance with the judgment or order.
It shall be signed and dated by the party
or the Advocate filing it.

Rule 10. Procedure of objection.-
Where an objection is filed under the next
preceding Rule the Registrar shall after
giving notice to the parties concerned
decide such objection with liberty to
adjourn any matter to the judge by whom
such judgment or order was delivered in
Chambers. If such Judge is not available
the matter shall be put up before such
Judge as the chief Justice may nominate.

Chapter X

Rule
2.
Appeal
against
legal
representative of deceased party-Where
a person has died after the date of an
appealable decree or order to which he
was party, any other party to the decree
or order, who wishes to appeal therefrom
may enter the name of the legal
representative of the person who has died,
in the memorandum of appeal as a
respondent if that person would ,if alive,
have been a necessary or proper party to
appeal. The appellant shall also present
alongwith his memorandum of appeal an
application for leave to make such legal
representative a respondent to the appeal.
The application shall state such facts as
may be necessary to support it and shall
be accompanied by an affidavit.

Provided that no such application
shall
be
required
if
such
legal
representative has already been made a
party to any proceedings under the decree
or order subsequent to the date on which
it was passed. In such case a note to that
effect shall be made in the memorandum
of appeal.

Chapter XI

Rule
3
Office
report.-
No
memorandum of appeal or objections
under Rule 22 or 26 of Order XLI of the
Code and no application for revision shall
be presented unless it bears an office
report specifying-

(a) in case of memorandum of appeal or
objections, or an application for revision,
that it is within time or, if beyond time,
the period by which it is beyond time:
(b) whether the case is or is not such as
may be heard by a Judge sitting alone;
(c) whether it is accompanied by the
necessary papers, if any ;
(d) whether any court fee is payable or
not;
(e) where court -fee is payable, whether
the court- fee paid is sufficient and in case
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it is deficient, the extent of such
deficiency; and
(f) whether it is drawn up in accordance
with these Rules, or other law and if not,
in what manner it is defective.

Rule
7.
Defective
application
or
memorandum of appeal or objection. If
the Bench before which a motion is made
for the admission of an application or a
memorandum of appeal or objections
finds
that
the
application
or
the
memorandum of appeal or objections as
the case may be or the affidavit or other
paper accompanying it, is not in order, or
that such application or memorandum of
appeal or objections is not accompanied
by the necessary papers, the Bench may
either return it or may, subject to the
provisions of these Rules or any other
law, receive it, granting time for the
removal of the defect. A motion for its
admission may be made again after the
removal of such defect:
Provided that nothing contained in this
Rule shall have the effect of extending the
period of limitation.

Rule 13. Defective memorandum of
appeals or objections filed under Rule 12.
(1) If any defect in the memorandum of
appeal, or objection or an application for
revision is pointed out in the office repot,
the Deputy Registrar shall immediately
cause a notice of the defect to be served
on the Advocate of the appellant or
objector, or applicant as the case may be,
requiring him to remove the defect or to
file an objection within seven days of
receipt of notice.
(2) The objection if any, filed under sub-
rule (1) shall, alongwith the report, be
listed immediately for orders before the
Registrar. If the Registrar allows the
objection, he shall proceed to deal with
such appeal or objection or application as
if it had been reported to be in order, and
if he rejects it, the defect shall be removed
within seven days from the day of
rejection.
(3) If the defect is not removed within the
time specified in sub- rule (1) and (2) or
such further time as may be allowed by
the Registrar, the memorandum or
application shall be listed for rejection
before the Court and shall be rejected
unless the Court for a sufficient cause
supported by an affidavit grants further
time for its removal. On expiry of the
further time without the defect removed,
the Court shall reject the memorandum.
Provided that no order passed under the
provisions of this rule shall be deemed to
extend the period of limitation."

7. The Definition of the term 'Legal
Representative' contained in 2(11) of the
Code of Civil Procedure, is unequivocal.
'Legal Representative' is a person who is
in law represents the 'estate' of the
deceased person.

8. Legal representative is added only
to decide the rights and liabilities of
original
party
and
not
of
'legal
representatives'
themselves.
Legal
Representative cannot assert his own
individual or hostile title in suit (See
A.I.R. 1940 Allahabad, 99).

9. Order XXII Code of Civil
Procedure does not contemplates the
removal of the name of deceased party
and no such expression like deletion/
striking of removal etc. has been used.

Definition
of
the
term
'Legal
Representative' contained in section 2(11)
of Code of Civil Procedure is very wide
(See A.I.R. 1949 Allahabad 604 -D.B.)
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10. According to the definition, it
includes a person, who in law represents
estate of deceased person. Definition in
this Court denotes that those class of
persons on whom the status of a
representative is fastened by reason of
death, whose estate they are held to
represent (See A.I.R. 1929 Oudh 353-DB)

11. It is rights and liabilities of the
original party that have to be considered
and not those of legal representative. All
that legal representatives can take up suit
at the stage it was left, when original
party (so represented by him) died and to
continue it likewise that defendant is
entitled
to
raise
against
a
legal
representative, any defence other than
those, which he could raise against
deceased plaintiff.

12. A 'legal representative' steps
into the shoes of an original deceased
party, who died during pendency of a
proceeding and only represents the estate
of the deceased. He is to continue the
proceedings as could have done by the
deceased, in whose place he is substituted
as his 'legal representative'. It is also well
settled that legal representative can
contest a suit/proceeding only on the basis
of 'cause of action', on which suit
/proceeding
was
contested
by
the
deceased party and not beyond it.

13. A bare perusal of the above
quoted statutory provisions upon which
we could lay our stand shows that when a
party dies, name of deceased party is to be
struck off/ deleted/ removed /erased.

14. On the contrary Section 37
General Rules (Civil) read with Order 22
R 3 & R 4 C.P.C. in an un-ambiguous
manner provides that when a party dies
pendentelite, to make a note to that effect
to be added against the name of that
deceased party and heirs (correctly Legal
Representatives) of deceased party to be
substituted as given therein. Word "Struck
Out" has been used in Order 1 Rule 10 (2)
C.P.C., but avoided in Order 22 Rule 3 &
Rule 4 C.P.C. It shows that party once on
record, even if dead, has to continue and a
note of the fact is to be made. If Legal
Representatives are to be brought on
record, they shall be further made party
(see Order 22 Rule 3) as provided under
Rule 37 General Rules (Civil).

15. The aforequoted provisions also
show that judgment should contain full
particulars of the parties and decree has to
follow the judgment. In case name of a
deceased party (originally impleaded) is
washed off while substituting L.Rs, it is
likely to mislead as it shall not be possible
in future to ascertain extent of rights to
be determined with respect to the estate of
a deceased party. It may be reiterated that
when a person dies, right of substitution is
not on the basis of succession, but a
person, who is competent to represent the
estate of a deceased party and has no
interest adverse to the deceased's estate
will be permitted to be substituted as his
legal representative.

16. To ensure to keep the record
straight and to avoid misconception and/
or
ambiguity
in
future,
Statutory
provisions specifically provide that when
a party to a suit/ proceeding dies, a note
be made to that effect against said party
and 'legal representatives' be brought on
record as per Rule 37, General Rules
(civil) and Allahabad High Court Rules.
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17. It, therefore, naturally follows
that in an application for substitution of
L. Rs. prayer for deletion/ striking off/or
washing off/ to erase/ removal of the
name of 'deceased party' on record, is
misconceived,
untenable
and
not
approved in law, prayer to the above
effect in the amendment application for
substitution
of
L.Rs.
is
totally
misconceived and cannot be legally
allowed. It is not permissible in law to
erase the name of original deceased party
and to do the contrary is also being
uncalled for.

18. Once party is impleaded and/or
brought on record, proceedings started
must be concluded with their names and
continue till perpetuity. In the matter of
death of any such party, in case of
substitution of legal representative "on an
application made in that behalf, Court
shall cause legal representative of the
deceased, plaintiff/defendant to be made a
party to proceed with the suit." and if
L.Rs are not be substituted, then a note
shall be made against a party of his death,
but in no case name of deceased party
shall be deleted or removed or struck off.

19. At this juncture, though not
directly involved, this Court desire to
advert to the practice prevailing in the
Court, e.g. an application for substitution
being allowed-requisite note/amendment
in array of parties (particularly in writ
petitions) is done by the Registry. Such
practice cannot be approved. C.L. No.
6/VII-e- 148 dated 11th January, 1952.
issued to sub- ordinate Courts reads-

"Circular letters of the High Court
of Judicature at Allahabad 1990 Edition,
particular page no. 342 published by
Institute
of
Judicial
Training
and
Research, U.P. Lucknow, provided under
Rule 18 of Order VI of the Code of Civil
Procedure, 1908 , parties are themselves
responsible
for
making
necessary
amendments in the pleadings within the
time allowed by the Court. It is not part of
the duty of the office of the Court to make
necessary amendments in the pleadings.
Parties
should
themselves
make
amendment in terms of the Court order or
get them made by their counsel under
their signature. After amendments have
been made, they should be checked by the
official concerned, who should thereafter
record a note on the pleadings including
the name of the persons by whom the
amendments were made and the fact that
they were made under the Order of the
courts
giving
a
reference
to
the
application on which such orders were
passed and date of such orders."

20. We are of the opinion that
similar instructions to be followed with no
exception in the matters pending in High
Court. It is to be noted that there is a long
standing practice of continue not omitting
name of and to the name of 'deceased
party' as is evident from the manner
parties are described in the cases reported
in the Law Journals. For convenience,
some instances of such description of
parties are given below:-

(1) A.I.R. 1966 S.C. 1908 Viswambhar
Roy Deceased by L.R. appellant Vs.
Girindra Taimar Paul (deceased by
Legal Representative-- Respondents.
(2) 1995 (Suppl 3) S.C.C. 179 Basavan
Jaggu Dhobi Vs. Sukhnandan Ram
Das Chaudhary (dead) the L.R.s &
Ors.
(3) 1995 (Suppl 4) S.C.C. 534 Sundra
Naick Vdiyar (Dead by L.R.S. &
Another Vs. Rama Swami Ayyar
(Dead) by L.R.s.
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162
(4) J.T. 2003 (Suppl. 1) S.C. 428 Illaichi
Dar (Dead) by L.Rs. & Ors. Vs.
Joint Society to the Protection of
Orphas India & Ors.

21. We, therefore, order accordingly.
Objection/s by Stamp Reporter contrary
to the above are over-ruled with directions
to the Stamp Reporter to submit fresh
report in accordance with law as per
observations made above and further in
the matters where 'Decree' of Court
below is not drawn in accordance with
law as explained above, the concerned
party should get it corrected.

22. We, therefore, direct all
concerned
to
prepare
'decree'
in
accordance with law containing full
description of parties keeping aforequoted
relevant provisions in mind.

23. If 'decree' prepared by the court
below is not in accordance with law,
Stamp Reporter must make objection to
that effect also under Chapter XI Rule 7
Rules of Courts, 1952.

24. A copy of this order shall be sent
to the Registrar General within two
weeks. The Registrar General shall take
necessary steps for issuance of Circular
letter to all the subordinate Courts and
Registry of this Court for information and
strict compliance in the light of the
directions/ observations made above.
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