BINOD PATHAK & ORS. versus SHANKAR CHOUDHARY & ORS.

BINOD PATHAK & ORS. versus SHANKAR CHOUDHARY & ORS.

Where advocates appearing for parties knew of deaths of certain defendants during pendency of the first appeal and failed to inform the court and other parties as required by Order XXII Rule 10A CPC, equity precludes those parties from taking the benefit of abatement under Order XXII Rule 4; the High Court erred in treating Rule 10A as effectively otiose and in allowing abatement to be invoked in such circumstances—impugned order set aside and matter remanded for fresh consideration consistent with Rule 10A and Rule 4.

Parties
Appellants / Original Plaintiffs: Binod Pathak & Ors.; Respondents / Original Defendants: Shankar Choudhary & Ors.
Jurisdiction
India
Judgment Date
14 July 2025
Procedural Posture
Civil Appeal (civil Appeal No. 7706 of 2025) / Appeal to the Supreme Court — Final Judgment Remanding Matter to High Court for Fresh Hearing
Outcome
Appeal partly allowed; impugned judgment and order of the High Court set aside; matter remanded to the High Court for fresh hearing of Second Appeal No. 190 of 2008
Legal Topics
Abatement, Order XXII Rule 10 a CPC, Duty of Pleader to Inform Court of Death, Non Substitution of Legal Heirs, Doctrine of Clean Hands, Latin Maxims on Rights and Advantage
Code of Civil Procedure Civil Procedure Equity Abatement Order XXII Rule 10 a CPC Duty of Pleader to Inform Court of Death Non Substitution of Legal Heirs Doctrine of Clean Hands +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 10 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Binod Pathak & Ors.

Appellants / Original Plaintiffs

Shankar Choudhary & Ors.

Respondents / Original Defendants

Procedural Posture

Civil Appeal (civil Appeal No. 7706 of 2025) / Appeal to the Supreme Court — Final Judgment Remanding Matter to High Court for Fresh Hearing

Legal Issues

  1. 1 Whether the High Court was correct in holding the first appellate court could not hear the first appeal on merits because some defendants had died and their legal heirs were not brought on record
  2. 2 Whether failure of a pleader to inform the court of the death of his client under Order XXII Rule 10A CPC precludes the party from claiming abatement
  3. 3 Whether Order XXII Rule 10A overrides or is inconsistent with the abatement consequences under Order XXII Rule 4 CPC

Ratio Decidendi

Where advocates appearing for parties knew of deaths of certain defendants during pendency of the first appeal and failed to inform the court and other parties as required by Order XXII Rule 10A CPC, equity precludes those parties from taking the benefit of abatement under Order XXII Rule 4; the High Court erred in treating Rule 10A as effectively otiose and in allowing abatement to be invoked in such circumstances—impugned order set aside and matter remanded for fresh consideration consistent with Rule 10A and Rule 4.

Court Disposition

Appeal partly allowed; impugned judgment and order of the High Court set aside; matter remanded to the High Court for fresh hearing of Second Appeal No. 190 of 2008

Orders

  • Impugned judgment and order dated 22.10.2014 of the High Court set aside
  • Second Appeal No. 190 of 2008 restored to the High Court file and to be heard afresh and decided on merits after giving both parties opportunity of hearing