Mohd. Nazamuddin Khan (died) and Others vs Ahmedi Begum and Others

Kodandaramayya, J.—In a suit so long as the cause of action survives to the remaining plaintiffs, there cannot be abatement in relation to the said cause of action. It may be that the suit may not be maintainable for want of necessary parties before the Court. Rule 3 of Order 22 will apply only when the right to sue does not survive (where there are several plaintiffs) to the surviving plaintiffs alone, but survives either to the surviving plaintiff jointly with others or exclusively to others. On the other hand, if the right to sue survives to the surviving plaintiffs, the case is not within this rule. The word ''alone'' occurring in Order 22 Rule 3 should mean ''to the exclusion of others''. However, so long as the right to sue survives to the surviving plaintiffs also, there cannot be a total abatement of the suit. In fact, there cannot be an abatement, if the cause of action survives. A suit for partition is a suit for property and the maxim action personal is moritur cum persona has no application to it.

The test of inconsistent decrees applicable in the case of abatement has no application when the abatement takes place pending the suit and the cause of action survives to surviving parties. The rule of inconsistent decrees has no application so long as the suit is pending.