Source: Supreme Court 

Why in News? 

Recently, Justices PS Narasimha and Manoj Misra clarified that "a remedy under Order XLI Rule 4 CPC does not apply when all defendants jointly appeal and one dies without substitution" while dismissing an appeal where appellants challenged the MP High Court's decision dismissing their Second Appeal as abated. 

• The Supreme Court held this in the matter of Suresh Chandra (Deceased) Thr. LRs. & Ors. v. Parasram & Ors. (2025). 

What was the Background of Suresh Chandra v. Parasram (2025) Case? 

• The Appellants/defendants challenged the MP High Court's decision dismissing their Second Appeal as abated as per Order XXII Rule 3 CPC. 
• The appellants had failed to timely substitute the legal representatives of one of the defendants who died during the pendency of the Second Appeal. 
• The case involved a 'joint and indivisible' decree passed against the defendants by the First Appellate Court, which was being challenged in the Second Appeal. 
• The appellants argued that non-substitution of the deceased defendant's legal representatives would not be fatal to their case. 
• They claimed protection under Order XLI Rule 4 CPC, arguing it grants them the right to appeal without substitution on behalf of other defendants if the decree was based on common grounds. 
• The MP High Court had dismissed the Second Appeal holding that it abated due to non-substitution of the deceased party's legal heirs. 
• The appellants contended that since the decree was based on common grounds, the surviving appellant could continue the appeal under Order XLI Rule 4 CPC. 

What were the Court's Observations? 

• A bench of Justices PS Narasimha and Manoj Misra observed that "As the second appeal was jointly filed by the two defendants, the benefit of the provisions of Order XLI Rule 4 CPC was not available to the surviving defendant appellant." 
• The Supreme Court clarified that the remedy under Order XLI Rule 4 CPC would have been available only when one defendant filed the appeal making other defendants proforma Respondents. 
• The Court distinguished the present case from scenarios where "one of the defendants files an appeal making other defendants as Respondents" amongst multiple defendants. 
• The Supreme Court noted that since the second appeal was jointly filed by both defendants, the benefit of Order XLI Rule 4 CPC was not available to continue the appeal after one party's death. 
• The Court referred to Rameshwar Prasad & Ors. v. Shambehari Lal Jagannath & Anr., AIR 1963 SC 1901 and distinguished it from Mahabir Prasad v. Jage Ram & Ors., (1971) 1 SCC 265. 
• The Supreme Court held that Rameshwar Prasad was relevant where all plaintiffs whose suit had been dismissed had jointly appealed, and the appeal abated due to failure to substitute legal heirs. 
• The Court emphasized that "Order XXII applies without exception to all proceedings" and operates during the pendency of proceedings including appeals. 

Supreme Court's Legal Principles on Abatement: 

• The Court summarized the law on the interplay between Order XLI Rule 4 and Order XXII: 
• Rule 4 of Order XLI applies at the stage when an appeal is filed and empowers one party to file appeal against entire decree in certain circumstances. 
• Once an appeal is filed by all parties aggrieved by the decree, the provisions of Order XLI Rule 4 become unavailable. 
• Order XXII applies without exception to all proceedings and operates during pendency, not at institution. 
• Where an appeal is filed by one or some parties making others proforma respondents, Order XLI Rule 4 benefit is available even if proforma respondent dies. 
• There is no inconsistency between Order XXII and Order XLI Rule 4 as they operate at different stages and for different contingencies. 

What is Order XLI Rule 4 of CPC? 

About: 

• Order XLI Rule 4 of the Code of Civil Procedure, 1908 deals with "Who may appeal" and allows one of the parties to appeal on behalf of others in certain circumstances. 
• The rule states that where there are more persons than one having the same interest, one or more of such persons may, with the permission of the Court, appeal for the benefit of all. 
• The provision enables one of the parties to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. 
• The court in such an appeal may reverse or vary the decree in favour of all parties having the same interest as the appellant, even though they have not appealed. 

Key Provisions of Order XLI Rule 4: 

• The rule requires permission of the court for one party to appeal on behalf of others. 
• All parties must have the same interest in the subject matter of the appeal. 
• The decree must proceed on grounds common to all parties having the same interest. 
• Non-appealing parties with same interest can benefit from the appeal's outcome. 
• The court has discretionary power to allow such appeals based on circumstances. 

Order XXII - Death, Marriage and Insolvency of Parties: 

• Order XXII deals with death, marriage and insolvency of parties during the pendency of proceedings. 
• Rule 3 provides for abatement of suit on death of sole plaintiff or sole surviving plaintiff. 
• Rule 4 deals with the procedure on death of one of several defendant or of sole defendant where right to sue survives. 
• Rule 9 provides for abatement by reason of death where right to sue does not survive to legal representatives. 
• The order requires substitution of legal representatives within the prescribed limitation period to avoid abatement. 

Distinction Between Joint Appeals and Individual Appeals