plaintiff himself, who has to endure
15
the consequence of effect of abatement of suit
against defendant. The other co-defendant has no
right ... under Order 22,
Rule 9 which lays down the effect of abatement. This view
has also been taken by a Division Bench of the Calcutta
abatement may in substance be
construed as a prayer for setting aside abatement. So also a prayer for
setting aside abatement as regard ... setting aside the abatement as the relief of setting aside
abatement though not asked for in so many words is in effect being actually
asked
Gulam Abbas & Ors vs State Of U.P. & Ors on 3 November, 1981
appeal.
Rule 9 of Order 22 states about the effect of abatement
or dismissal. Rule 9 is to the following effect:-
"(1) Where ... suit is already not
abated, and if abated, they have to file an application to
set aside abatement also.
In the instant case, deceased Radhu
Respondents
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Effect of abatement of an appeal, as envisaged under Order 22 Rule ... Order XXII.
Rule 9 of Order XXII provides for the effect of abatement or
dismissal, stating :
"9. Effect of abatement or dismissal.--(1) Where
relying
upon the judgment of the Revenue Courts as the effect of abatement was that
the judgment and the decree, passed by the Revenue Courts ... read with Sec. 5(2) of the Act
would have the effect of abating the proceedings for preparation for final
decree which, at the relevant
consequence ensuing
upon the issue of a notification and the effect of abatement
would be that the civil proceeding as a whole would come ... abatement and abatement under the Code of Civil Procedure . On the basis of
a statutory abatement, the whole proceeding from its inception stands
abated because
appeal as against the said plaintiff respondent, Nrityataran. The effect of such abatement against one of the plaintiffs is either that the said appeal became ... opinion, however, none of these three cases had considered the effect of abatement on the proceedings. In the case of (supra) the legal representatives
estate; that the action to set
aside the fraudulent conveyance abated upon the death
of Mr. Brinkerhoff and that the court lacked jurisdiction
over ... against a dead person. Ovberell v. Overell is
also cited o the effect that a judgment cannot be given
against
such ignorance, if proved.
12. Rule 9 deals with the effect of abatement or dismissal and may be read here:
Order 22, Rule 9 : Effect ... plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit
