JUDGMENT 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".
2. Learned counsel for the appellants, Sri Anurag Khanna, Advocate, seeks to challenge the aforesaid objection made by the Stamp Reporter of the Court.
3. 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'.
4. 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 v. 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 and 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.
5. The context of the above, an interesting procedural issue is in contest.
6. 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.
7. 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.
8. To appreciate aforesaid question, reference be made to the following provisions of the Code 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 the Code of Civil Procedure, with previous approval of Government 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 Section 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 property 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 to be just, order that the name of any party 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;
(c) 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 in 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 working days from 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 up 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 alteration directed by the Judge shall be 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 (here are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff 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 see 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 17. 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 the 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 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 has 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 pre-fixed a heading specifying the number of the case, the names of all the parties.
Rule 95. Decree to contain addresses 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 addresses 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 4A 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 authorised 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.
(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 peruse 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 along with 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 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 report, 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 (I) shall, along with 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-rules (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."
9. The definition of the term 'Legal Representative' contained in Section 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.
10. 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 AIR 1940 All 99].
11. Order XXII, Code of Civil Procedure does not contemplates the removal of the name of deceased party and no such expression lie deletion/striking of removal etc. has been used.
12. Definition of the term "Legal Representative" contained in Section 2(11) of Code of Civil Procedure is very wide [See AIR 1949 All 604 (DB)].
13. 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 AIR 1929 Oudh 353 (DB)].
14. 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.
15. 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.
16. 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.
17. On the contrary Section 37, General Rules (Civil) read with Order XXII, Rules 3 and 4, C.P.C. in an unambiguous manner provides that when a party dies pendente lite, 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 I, Rule 10 (2), C.P.C., but avoided in Order XXII, Rules 3 and 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 XXII, Rule 3) as provided under Rule 37, General Rules (Civil).
18. 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.
19. 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.
20. 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.
21. 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.
22. 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 subordinate 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."
23. 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) Viswambhar Roy (deceased by L.Rs.) v. Girindra Taimar Paul (deceased by L.Rs., AIR 1966 SC 1908 ;
(2) Basavan Jaggu Dhobi v. Sukhnandan Ram Das Chaudhary (dead) by L.Rs. and Ors., 1995 Suppl. (3) SCC 179 ;
(3) Sundra Natck Vdivar (dead) by L.Rs. and Anr. v. Rama Swami Ayyar (dead) by L.Rs., 1995 Suppl. (4) SCC 534 ;
(4) Illaichi Dar (dead) by L.Rs. and others v. Joint Secretary to the Protection of Orphans India and Ors., JT 2003 (Suppl) 1 SC 428.
24. 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.
25. We, therefore, direct all concerned to prepare 'decree' in accordance with law containing full description of parties keeping aforequoted relevant provisions in mind.
26. 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 of Rules of Courts, 1952.
27. A copy of this order shall be sent to the Registrar General within one week. 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.