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(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

8. There can be no doubt that Order XXII Rule 3 is applicable also to appeals filed under Order

41. Order XXII Rule 3 declares that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone inter alia the Court on an application can substitute the legal representatives of the deceased plaintiff and proceed with the suit. Sub-rule (2) provides that if it is not so done, the suit shall abate as far as the deceased plaintiff is concerned. Order XXII Rule (3) therefore is applicable when either a suit or an appeal is filed by more than one plaintiffs or appellants as the case may be. This is no doubt apart from it applying when there is a sole plaintiff or sole appellant. In such a situation, on the death of one of the plaintiffs or appellants and the right to sue does not survive to the remaining plaintiff/plaintiffs or appellant/appellants alone, then the LRs of the deceased party can come on record. Should he not do so, ordinarily, the proceeding will abate as far as the deceased party is concerned.

9. Let us first of all examine whether the right to sue survived to the appellant alone or the right to sue was available to the LRs of the deceased appellant as well. It is quite clear that there were legal representatives available for the second appellant. This is not a case where the estate of the second appellant would pass to the appellant herein by survivorship or otherwise. Therefore, the first requirement is fulfilled for allowing Order XXII Rule 3 to operate. Admittedly, steps were not taken for substitution in regard to the second appellant. The appeal, therefore, abated qua him as is declared by Order XXII Rule 3(2). Though this is all that the Order XXII Rule 2 declares, the principle has evolved that in certain kinds of litigation, the consequences of abatement qua a party is not limited to the deceased party alone but it affects all the other parties and the litigation itself. In other words, a suit or an appeal as the case may be, would suffer an untimely demise by the proceeding abating as a whole.

13. The next decision we would notice is the decision in Ram Sarup vs. Munshi & Ors. 1963 (3) SCR

858. The case involved the death of one of the respondents during the pendency of the appeal filed by the State. The question involved was whether the right of preemption would continue to be available despite the repeal of the Punjab Alienation of Land Act, 1900. In one of the civil appeals, the pre-emptors who claimed the right of pre-emption who were 4 in number, obtained a decree against the vendees. The appellant vendees had purchased the property for Rs. 22,750/-. The appellant Nos.1 and 2 paid one half amounting to Rs.11,375/-. The other 3 appellants paid the other half. The sale deed showed that it was not a case of sale of separate items in favour of deceased-appellant but of one entire set of properties enjoyed by two set of vendees in equal share. Pending the appeal by the appellants vendees, the first appellant died and it abated as against him. In this set of facts this Court proceeded to hold that the decree being a joint decree and a part of the decree has become final by reason of the abatement, the entire appeal would abate. The reasoning was there could be no partial pre-emption because pre-emption was the substitution of pre-emptors in place of the vendees and it was found that if the decree in favour of the pre-emptors in respect of the share of the deceased vendee appellant had become final there would be two conflicting decrees if the appeal were to be allowed and the decree of pre-emption insofar as appellants 2 to 5 were concerned was interfered with. It must at once be noticed that Order XXII Rule 3 provides for the converse of Order XXII Rule 4. That is to say Order XXII Rule 3 deals with a case where one or more plaintiffs or appellants or the sole plaintiff or sole appellant dies during the pendency of the suit or appeal. Order XXII Rule 4 on the other hand deals with a case where one or more of the defendants in the suits or sole defendant or the respondents or sole defendant in the appeal dies. In both these cases it must be noticed that it is a condition precedent for the provisions to apply that the right to sue does not survive to the remaining plaintiffs/ appellants (Order XXII Rule