Appeal abates when deceased co-owner’s legal representative is not impleaded | Co-ownership appeal under Order 22 CPC : Himachal HC

The Himachal High Court ruled that an appeal is extinguished if a deceased co-owner’s legal representative is not brought on record, preventing contradictory decrees. Parties must ensure representation of all owners before pursuing an appeal.

Cassie News Network•

Jul 31, 2026, 4:00 PM(Updated: Nov 3, 2026)

•2 min read

Be the first to share in your circle

The High Court of Himachal Pradesh clarified that an appeal concerning co-owners must be dismissed in its entirety when a deceased co-owner’s legal representative is not brought on record, preventing contradictory decrees and upholding the doctrine of abatement under Order 22 of the CPC.

Background & Facts

The Dispute

The appellant, Ashok Kumar Sharma, filed a civil suit seeking a declaration that he and respondents No.1 and No.3 were owners in possession of the suit land as mentioned in the plaint’s head note. The suit also sought a permanent prohibitory injunction restraining the defendants from claiming any right of ownership and possession.

Key Facts

Late Ram Rattan Sharma executed a Will dated 25.04.1989 in favour of defendants No.1 and No.2.
Plaintiffs alleged they were the legal heirs of Ram Rattan Sharma and co-owners with defendants No.1 and No.3.
Defendant No.3 (original defendant No.3) died during the pendency of the appeal; the death was notified to the Court on 26.02.2026.
Respondent No.4 stood ex parte as per order dated 19.10.2023.
The trial Court held that the plaintiffs and defendants No.1 and 3 were not owners in possession, dismissing the suit on the basis of the valid Will.
The District Judge, Kangra at Dharamshala, affirmed the trial Court’s findings.
The appellant filed the present appeal before the High Court.

Procedural History

25.04.1989: Will executed by Ram Rattan Sharma.
30-11-1994: Trial Court partially decreed the suit.
26-06-1998: District Judge set aside the trial decree and remanded for fresh decision.
24 July 2009: Order recorded abatement of the appeal against defendant No.2.
15-12-1999: Application filed under Order 22 Rules 1 and 4 CPC seeking declaration of abatement.
19.10.2023: Respondent No.4 stood ex parte.
26.02.2026: Death of respondent No.3 notified.
21.07.2026: Appeal reserved.
30.04.2026: Judgment delivered, appeal dismissed as abated.

Parties' Positions

Appellant: Asserted that he and the surviving defendants were co-owners and that the appeal should proceed to determine ownership rights.
Respondents: Relied on the Will dated 25.04.1989, argued that the appeal must abate under Order 22 Rule 4 CPC because no legal representative of the deceased was brought on record within the stipulated period.

Relief Sought

The appellant sought a declaration of ownership and a permanent injunction restraining the defendants from asserting any right over the suit land.

Frequently Asked Questions

Order 22 Rule 4 CPC stipulates that a suit or appeal shall abate as against a deceased defendant where no application is made to bring the legal representative on record within the time prescribed by the Code.

The three tests, derived from Ramagya Prasad Gupta v. Murli Prasad, are: (a) whether the appeal would lead to a decree contradictory to a final decree concerning the deceased; (b) whether the appellant could have obtained the relief against the remaining parties alone; and (c) whether any decree against the surviving parties would be ineffective if the appeal succeeds.

In a co-ownership scenario, the deceased's interest can be represented only by his own legal representatives, not by the surviving co-owners, unless the decree expressly creates a joint-ownership right. Therefore, failure to bring the legal representative on record results in abatement of the appeal.

Appeal abates when deceased co-owner’s legal representative is not impleaded | Co-ownership appeal under Order 22 CPC : Himachal HC