PART C APPLICATIONS UNDER ORDER XXII, CODE OF CIVIL PROCEDURE.
(i) Legal representatives of deceased parties and appeals by persons who were not parties to the decree or order.
1. Whenever a party to a decree or order, which is appealable to the High Court, desires to appeal therefrom and to make as a respondent to his appeal the legal representative of a person who, having been a party to such decree or order, has died after the date of such decree or order, and who, if alive, would be a necessary party as a respondent to such appeal, and whose legal representative has not as such been made a party to the decree or order, or to subsequent proceedings thereunder or thereon, the party so desiring to appeal may present to the High Court for admission a memorandum of appeal with the name of such legal representative mentioned therein as such as that of a respondent if at the time when he presents such memorandum of appeal for admission, he along with such memorandum of appeal, presents an application for leave to make such legal representative as such a party as a respondent to his appeal, and, except as hereinafter provided, an affidavit stating such facts as may be necessary in support of his application: Provided always that a Judge of the High Court may, by an order under his hand, allow in his discretion a reasonable time in that behalf for the presentation of such affidavit, if it appears to him that the applicant could not by the exercise of due diligence have procured such affidavit in time for presentation along with the memorandum of appeal.
2. Whenever by a decree or order which is appealable to the High Court the interest of-
(a) a beneficiary in property which at the date of such decree or order was vested in or in the possession of a trustee, an executor, an administrator, or a receiver or manager appointed by a court who as such was a party to such decree or order, or
(b) a legal representative as such of a deceased party to such decree or order, or
(c) an assignee of a party to such decree or order by assignment subsequent to the date of such decree or order, or
(d) a person whose interest arose after the date of such decree or order by reason of any creation or devolution of interest, by, through, or from any party to such decree or order is affected,
and such beneficiary, legal representative, assignee, or person was not or has not been made a party to such decree or order or to proceedings thereunder or thereon, and desires to present to the High Court for admission a memorandum of appeal from such decree or order, he may name himself therein as an appellant if at the time when he presents such memorandum of appeal for admission he along with such memorandum of appeal presents an application for leave to make himself an appellant, and, except as hereinafter provided, an affidavit stating such facts as may be necessary in support of his application:
Provided always that a Judge of the High Court may, by an order under his hand, allow in his discretion a reasonable time in that behalf for the presentation of such an affidavit, if it appears to him that the applicant could not by the exercise of due diligence have procured such affidavit in time for presentation along with the memorandum of appeal.
3. Whenever in any suit or appeal from the decree or order, in which an appeal may be preferred to the High Court, a party has, before the appealable decree or order in such suit or appeal has been made, died, and the name of such deceased party appears in such decree or order as that of a party thereto, and his representative has not been brought upon the record, and such deceased party would, if alive, be a necessary party to an appeal to the High Court from such decree or order, and any party to such decree or order, or the legal representative of any such party, having a right of appeal from such decree or order, desires to appeal from such decree or order, and to make the legal representative of such deceased party a party to the appeal, he may present to the High Court for admission a memorandum of appeal with the name of such legal representative mentioned therein as a party to the appeal, if at the time when he presents such memorandum of appeal for admission he along with such memorandum of appeal presents an application for leave to make such legal representative a party to the appeal, and, except as hereinafter provided, an affidavit showing that he did not know, before the decree or order from which he desires to appeal was made, that such deceased party had died, or that he had no reasonable opportunity of informing the Court which made the decree or order, before such decree or order was made, that such deceased party was dead, and stating such other facts as may be necessary in support of his application: Provided that a Judge of the High Court may, by an order under his hand, allow in his discretion a reasonable time in that behalf for the presentation of such affidavit, if it appears to him that the applicant could not by the exercise of due diligence have procured such affidavit in time for presentation along with the memorandum of appeal.
4. Whenever after a memorandum of appeal has been presented to the High Court, any appellant or any party interested in the maintenance of any objection filed in the appeal under Order XLI rule 22 or 26 of the Code of Civil Procedure first ascertains that a person, whose name appears in the memorandum of appeal as that of a party to the appeal, and who, if alive, would be a necessary party to such appeal or objection, had died before the memorandum of appeal was presented to the High Court or admitted, such appellant or party so interested as aforesaid may, but subject to the law of limitation, apply for an order that the memorandum of appeal be amended by substituting for the person, who had so died as aforesaid, his legal representative, if at the time when he presents such application, he along with such application, except as hereinafter provided, presents for filing an affidavit showing that such application is made with all reasonable diligence after the fact of the death of such person first came to the knowledge of such applicant or the agent, if any, acting on his behalf in the litigation: Provided that a Judge of the High Court may, by an order under his hand, allow in his discretion a reasonable time in that behalf for the presentation of such affidavit, if it appears to him that the applicant would not by the exercise of due diligence have procured such affidavit in time for presentation along with application.
4-A. (1) In every appeal of the nature referred to in Order XXII rule 3 of the Code of Civil Procedure, the memorandum of appeal shall be accompanied by a statement giving:
(a) the names and addresses of the persons who, in the event of the death of the appellant, may be made a party as his legal representatives; and
(b) the name and address of the person who, in the event of the death of the appellant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the appellant and make an application for the legal representatives to be made a party.
(2) (a) An appellant may at any time file in the Court an amended list of his presumptive legal representatives; and
(b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.
(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2) , remain in force throughout the pendency of the appeal and any proceedings arising therefrom, including appeal and review.
(4) If the appellant has filed the aforesaid statement in the suit giving rise to the appeal it shall stand superseded by the statement filed under this rule.**
4-B. (1) In every appeal of the nature referred to in Order XXII rule 4 of the Code of Civil Procedure the respondent shall by the date, Farzi or actual, specified in the notice of the appeal served on him, file a statement giving:
(a) the names and addresses of the persons who in the event of the death of the respondent, may be made a party as his legal representatives; and
(b) the name and address of the person who, in the event of the death of the respondent , shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the respondent and make an application for the legal representatives to be made a party.
(2) (a) A respondent may at any time file in the Court an amended list of his presumptive legal representatives; and
(b) nominate another person in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.
(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the appeal and any proceedings arising therefrom, including appeal or review.
(4) If the respondent has filed the aforesaid statement in the suit giving rise to the appeal, it shall stand superseded by the statement filed under this rule.
(5) Notice of appeal issued to the respondent shall contain direction requiring him to file the statement referred to in sub-rule (1) by the date specified in the notice.**
(ii) General Rules as to Suits and Appeals.
5. Every application-
(a) under Order XXII rules 3 (1) and 11 of the Code of Civil Procedure, by a person claiming to be legal representative of
deceased plaintiff or appellant to enter his name on the record in place of the deceased party;
(b) under Order XXII rules 4 and 11 of the Code of Civil Procedure, to make the legal representative of a deceased defendant or respondent a party in place of the deceased; and
(c) under the second clause of Order XXII rule 3 of the Code of Civil Procedure, by a defendant or respondent;
shall, in addition to any particulars required by law, state approximately the date of the death of the deceased party.
6. Every application under Order XXII rule 9 (read with rule 11) of the Code of Civil Procedure, by a person claiming to be the legal representative of a deceased party, or the assignee or the receiver of the insolvent plaintiff or appellant for an order to set aside any order made or judgment passed in his absence shall state the cause which prevented him from continuing or defending the suit or appeal, as the case may be.*
7. Every application of the kind specified in rules 5 and 6 of these rules and every application under Order XXII rule 10 of the Code of Civil Procedure, to make the petitioner or some other person an additional or substituted party in a suit or appeal, shall, as to the allegations of fact contained in such application, be verified by affidavit.
8. Every application under Order XXII of the Code of Civil Procedure shall ordinarily be presented to the Deputy Registrar, who shall cause the date of presentation to be entered thereon.
9.
The
Deputy Registrar shall examine the application, and, if it does not satisfy
the requirements of the Code or of these rules in that behalf, may return it
to the person presenting it, for amendment and re-presentation within a time
to be noted on such application under his signature, or may refer the
application to a Judge for orders.
10. Any such application may be presented to a Judge or to a Bench ( as the case may be) on the date fixed for the hearing of the case; but unless sufficient cause be shown for the application not having been presented in the ordinary course to the Deputy Registrar, before such hearing, the applicant will become liable to pay the costs of any adjournment or postponement caused by the omission to present the application to the Deputy Registrar.
11. When an application to have the name of the legal representative of a deceased party, or the name of an additional or substituted party, brought on the record, or to have the name of a party struck off the record, is granted by order of a Judge or Bench (as the case may be), the Deputy Registrar shall cause the record of the proceedings in the High Court to be amended in conformity with such order.
12. Every person admitted on the record as the legal representative of a deceased plaintiff, defendant, appellant or respondent, shall be described as “the legal representative of A.B., deceased plaintiff”(or defendant, appellant or respondent, as the case may be); and, similarly in the case of an insolvent plaintiff, defendant, appellant, or respondent.
(iii) Special Rule as to Suits.
13. Application under Order XXII of the Code of Civil Procedure, in original suits, when presented to the Deputy Registrar, shall, subject to rule 9 of these rules, be laid by him for orders before a Judge who shall ordinarily be the Judge before whom the suit to which it relates is pending.
(iv) Special Rules as to Appeals.
14. When an application of the kinds specified in rule 5 of these rules is presented to the Deputy Registrar in relation to an appeal pending before the Court, and is deemed by him sufficient, without or after amendment, and the Deputy Registrar does not deem it necessary to refer the application for the order of a Judge, he is authorized to make an order granting the application “subject to all just exceptions” and to cause the necessary amendments to be made in the memorandum of parties’ names and notices to be issued to the parties concerned to show cause on the date fixed for hearing the appeal.
15. Every application under Order XXII of the Code of Civil Procedure, not falling within rule 14 of these rules or not granted under that rule, shall be laid before a Judge for orders.
(v) Rules as to proceedings other than Suits and Appeals.
16. (i) The foregoing rules shall apply to all proceedings of a civil
nature, other than suits or appeals, to which Order XXII of
the Code of Civil Procedure is applicable.
(ii) So far as possible, the provisions of the foregoing rule shall
also apply to proceedings in the constitutional petitions.
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