Or.22 , rule 3 and 4 not applies and Or.22 ,Rule 10 applies - no abatement - when the defendant died after passing of the preliminary decree - it is not necessary to bring his legal heirs by filing petition- add them in the final decree petition as one of the respondents under or.22, rule 10 C.P.C.as is enough =
The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003
for appointment of a Commissioner for submitting a report so that a final decree
can be passed in the suit. Since the respondent no.s 4-6 had died and their
legal representatives would also have to be given notice in the final decree
petition I.A.493/2003, they also sought for condonation of delay of 1053 days in
bringing their legal representatives on record, to set aside the abatement
caused by their death and to bring them on record as legal representatives of
the deceased respondent no.s 4-6/defendant no.s 4-6. In the array
of parties, all the legal representatives of respondents 4-6 were also
indicated. =
When parties to a suit die, under Order XXII Rule
10A of CPC, it is incumbent on the counsel appearing for that party to furnish
details of the date of death and the details of the legal representatives along
with their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).
It has to be seen as to
what provision is applicable when O.22 Rules 1, 3 and 4 are not applicable in
case of death of parties during the final decree proceedings.
7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation or
devolution of any interest other than the cases referred to in remaining Rules
of or.22, the suit may by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved.
When Or.22 Rules 3
or 4 is not applicable in cases of death during the final decree proceedings,
one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on record
In T. Mangaraju v. K. Ganamma6, this Court held :
"Once preliminary decree is passed it cannot be said that the cause of action
dies along with the person nor dies it require that the LRs. should claim the
cause of action by being brought on record within the period of limitation
prescribed. In other words on account of the passing of the preliminary decree
the right stands recognised by the Court. All that is required is that the
final decree proceedings should be taken up at the instance of the party
claiming and in that view there is no question of any abatement nor does it
require that the abatement be set aside. The provision of Order 22 Rule 3 and 4
does not apply to a case where the holders dies after passing a preliminary
decree."(emphasis supplied)
In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :
"22. ... ... ... it is clear that by passing of preliminary decree, the rights
of the parties stand recognized and determined by the Court and the only thing
that is left is passing of the final decree.
Therefore after passing of a
preliminary decree if the plaintiff dies, since no final decree can be passed on
a dead person, it is essential to permit his legal representatives to come on
record.
Hence, after such determination and recognition of rights, if the
plaintiff dies, there is no question of any abatement and the suit cannot be
dismissed on the ground of abatement, after passing of a preliminary decree,
except in an appeal or in a revision." (emphasis supplied)
In view of the above legal position, I am of the opinion that Order XXII
Rule 3 and 4 have no application to the present case as preliminary decree in
the suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 took
place subsequently in 1997, 1999 and 2001, respectively. Thus there can be no
abatement of the suit on account of the death of the defendants 4-6 after
passing of the preliminary decree. So there was no necessity for the petitioners
to file petitions for condonation of delay in seeking to set aside abatement and
to set aside abatement. So the order of the court below holding that they should
have filed such applications and explained day to day delay in respect of each
of the deceased defendants is contrary to law and unsustainable.
It is most unfortunate that the trial court ignored the settled legal
position and dismissed the I.A 493/2003 for passing final decree on untenable
grounds and in a perverse manner. Such orders are likely to cause the parties to
lose faith in the institution of Judiciary itself.
25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly she
is not the legal heir of any of the deceased respondents and is not prejudiced
in any manner, if the petitions for condonation of delay in filing the
applications to set aside abatement and to set aside the abatement (assuming for
the sake of argument that as per law they should be filed), are not filed by
petitioners. By raising these untenable technical pleas she has managed to enjoy
the plaint schedule properties from 1984 till this day.
26. Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 in
OS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak
District is set aside. IA.No.493 of 2003 is restored to the file of the Sr.
Civil Judge, Medak. The said court shall issue notices to all the respondents
and take steps to do the needful to pass a final decree in the suit. The Civil
Revision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paid
by 3rd respondent to petitioners.
27. Miscellaneous applications pending, if any, shall stand closed.
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CRP.No.4557 of 2007
13-11-2013
Ausali Siddiramulu (Died per LR's) and others...Petitioners/ Petitioners
Ausali Dubbaiah, S/o.Sheshaiah (Died per LR.s)and others
...Respondents/Respondents
<GIST:
>HEAD NOTE:
Counsel for the Petitioner/Petitioners :Sri A. Rajamalla Reddy
Counsel for the Respondents/Respondents:Sri C.R. Pratap Reddy
Sri K. Goverdhan Reddy
?Cases referred:
1. AIR 1983 SC 1202
2. (2009) 9 SCC 689
3. 1991 (3) ALT 513
4. AIR 1924 P.C. 198
5. AIR 1962 Pat. 178
6. 1979 (1) APLJ 54 (NRC)
7. 2003 (3) ALD 585
The Court made the following : [order follows]
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CRP.No.4557 of 2007
ORAL ORDER :
1. This Revision is filed challenging the order dt.29.12.2005 in IA.No.493 of
2003 in OS.No.2 of 1984 on the file of the Court of the Sr. Civil Judge, Medak,
Medak District.
2. The petitioners are the legal representatives of one Siddiramulu, who was
the plaintiff in the above suit. He filed the said suit for partition of the
plaint schedule properties and for recovery of possession of his half share
therein. Siddiramulu died pending suit and his wife and children were brought
on record. A preliminary decree of partition was passed in the suit on
28.09.1984.
3. Challenging the said decree, Respondent Nos.1 to 6 herein filed AS.No.25 of
1984 before the District Judge, Medak. The said appeal was dismissed on
13.11.1987.
4. The 3rd respondent herein filed SA.No.174 of 1998 in this Court challenging
the same. On 18.09.2000 the said Second Appeal was also dismissed.
5. It appears that one Reddi Lachaiah, who is the 4th respondent/4th defendant
in the suit, died in the year 2001 leaving behind respondent Nos.17 and 18 as
his legal heirs. Likewise, Raja Timmaiah, the 5th respondent/5th defendant also
died in 1999 leaving behind the 16th respondent as his legal heir. The 6th
respondent/ 6th defendant in the suit, also died leaving behind the 14th
respondent as his legal heir.
6. The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003
for appointment of a Commissioner for submitting a report so that a final decree
can be passed in the suit.
Since the respondent no.s 4-6 had died and their
legal representatives would also have to be given notice in the final decree
petition I.A.493/2003, they also sought for condonation of delay of 1053 days in
bringing their legal representatives on record, to set aside the abatement
caused by their death and to bring them on record as legal representatives of
the deceased respondent no.s 4-6/defendant no.s 4-6.
In the array of parties, all the legal representatives of respondents 4-6 were also
indicated.
7. The 3rd respondent filed a counter opposing the said application contending
that the application is vague and vexatious and there is no specific prayer in
the petition;
that specific dates of the death of the deceased were not given;
that the petitioners ought to explain the delay in respect of the each of the
deceased; they also ought to file separate petitions in respect of each of the
respondent no.s4-6, for condonation of delay in seeking to set aside abatement,
to set aside abatement and to bring on record the legal representatives.
It is
also stated that pending Second Appeal before the High Court, the death of these
persons was not reported, and therefore, the 3rd respondent could not take steps
to bring them on record in the Second Appeal which she had filed.
8. By order dt.29.12.2005, the Court below dismissed the said I.A.
In the said
order, the trial court noted that the petitioner did not add the legal
representatives of the deceased in SA.No.174 of 1998 which had been disposed of
on 18.09.2000; that the petitioners did not give even the date of the deaths of
the deceased respondents; the delay is not properly explained; and there were
latches on the part of the petitioners.
9. Aggrieved thereby, the present Revision is filed.
10. Heard the counsel for petitioners and the counsel for 3rd respondent.
11. Respondent Nos.1, 2, 4 to 6 have died. Respondent Nos.7, 11 and 14 refused
to receive the notices sent by Court and therefore, they are deemed to be
served. Respondent Nos.8 to 10 and 17 were served but none appears on their
behalf.
12. The counsel for the petitioners contended that the reasoning of the Trial
Court is perverse; when SA.No.174 of 1998 was filed in this court by 3rd
respondent/3rd defendant, the trial court ought not have blamed the petitioners
for not bringing to the notice of this Court, the death of these persons or for
not bringing their legal representatives on record in the Second Appeal; that
under Order XXII Rule 10A of CPC, it was incumbent on the counsel who appeared
for the deceased parties in the suit to give information about the date of death
and the details of legal representatives of the deceased defendants to the
petitioners;
that the petitioners were not aware of these details and therefore,
they could not mention the specific dates of death of these individuals.
It is
also stated that since there is no time limit to file an application to pass a
final decree in a suit for partition, in the application filed to pass a final
decree, the petitioners are entitled to state that these persons have died and
their legal representatives be brought on record by condoning the delay, if any,
in filing applications to set aside the abatement.
He also contended that all
procedure is a hand-maid of justice and the mere fact that separate applications
in respect of each of the deceased respondents are not filed, it is not open to
the trial court to dismiss the application for passing final decree under under
Order XX Rule 18 CPC.
13. On the other hand, the counsel for 3rd respondent supported the decision of
the trial court. He contended that without the dates of death of the deceased
respondents being mentioned, the I.A 493/2003 cannot be entertained.
14. I have noted the submissions of the parties.
15. It is not disputed that the SA.No.174 of 1998 is filed by
3rd respondent in this Court and it was dismissed on 18.09.2000. When the 3rd
respondent/3rd defendant had filed SA.No.174 of 1998 in this Court , and the
petitioners had not filed it, the trial court cannot blame the petitioners for
not taking steps to bring on record the legal representatives of the deceased
respondents in that Second Appeal.
16. The Court below also mentioned that the dates of death of the deceased were
not given by the petitioners.
When parties to a suit die, under Order XXII Rule
10A of CPC, it is incumbent on the counsel appearing for that party to furnish
details of the date of death and the details of the legal representatives along
with their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).
Admittedly, this has not been done. When none of the respondents furnished the
date of death to the petitioners, to expect the petitioners to give the exact
date of death of the respondent Nos.4, 5 and 6 is perverse. A party cannot be
compelled to give information which he did not know. So this finding of the
trial court also cannot be sustained.
17. Once a preliminary decree is passed, the shares of the parties to the suit
are determined. What remains to be done is the division of property by metes
and bounds. As per law, admittedly, there is no time limit fixed for filing an
application to pass a final decree in a suit for partition (See Shub Karan Bubna
v. Sita Saran Bubna2). Therefore, the mere fact that the application for final
decree is filed in 2003 cannot be held against the petitioners.
18. It is pertinent to note that the death of the above parties occurred after
the passing of the preliminary decree. The question is whether there is any
abatement of the suit on account of death of a party to the suit after passing
of the preliminary decree but before passing of final decree.
19. This Court in S. Mohan Reddy v. P. Chinnaswamy3 held :
"3. It is well-established proposition of law that a suit cannot be dismissed
on ground of abatement after a preliminary decree was passed for thereby rights
are accrued to one party and liabilities are incurred by the other : vide
Lachiminarayan vs. Balmadund4. It was observed therein:
'After a decree has once been made in a suit, the suit cannot be
dismissed unless the decree is reversed on appeal. The parties have on the
making of the decree acquired rights or incurred liabilities which are fixed
unless or until the decree is varied or set aside.'
After a decree, any party can apply to have it enforced. As such, the
suit does not abate under Or.22 Rules 1, 3 and 4 CPC after a preliminary decree
is passed. But, it is equally a general principle of law that a decree cannot
be passed in favour of or against a dead person."
... ... ...
6. As I already observed, a suit cannot be dismissed except on appeal or by
review after a preliminary decree is passed. It follows that there cannot be
abatement of the suit even if the L.Rs. of the deceased party are not brought on
record during the final decree proceedings. But, even a final decree cannot be
passed for or against a dead person. So, it is necessary to bring on record the
L.Rs. of the deceased before a final decree is passed. It has to be seen as to
what provision is applicable when O.22 Rules 1, 3 and 4 are not applicable in
case of death of parties during the final decree proceedings.
7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation or
devolution of any interest other than the cases referred to in remaining Rules
of or.22, the suit may by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved. When Or.22 Rules 3
or 4 is not applicable in cases of death during the final decree proceedings,
one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on record. Ramsewak vs.
Mt. Deorathi5 lends support to the said proposition." (emphasis supplied)
20. In T. Mangaraju v. K. Ganamma6, this Court held :
"Once preliminary decree is passed it cannot be said that the cause of action
dies along with the person nor dies it require that the LRs. should claim the
cause of action by being brought on record within the period of limitation
prescribed. In other words on account of the passing of the preliminary decree
the right stands recognised by the Court. All that is required is that the
final decree proceedings should be taken up at the instance of the party
claiming and in that view there is no question of any abatement nor does it
require that the abatement be set aside. The provision of Order 22 Rule 3 and 4
does not apply to a case where the holders dies after passing a preliminary
decree."(emphasis supplied)
21. In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :
"22. ... ... ... it is clear that by passing of preliminary decree, the rights
of the parties stand recognized and determined by the Court and the only thing
that is left is passing of the final decree.
Therefore after passing of a
preliminary decree if the plaintiff dies, since no final decree can be passed on
a dead person, it is essential to permit his legal representatives to come on
record.
Hence, after such determination and recognition of rights, if the
plaintiff dies, there is no question of any abatement and the suit cannot be
dismissed on the ground of abatement, after passing of a preliminary decree,
except in an appeal or in a revision." (emphasis supplied)
22. In view of the above legal position, I am of the opinion that Order XXII
Rule 3 and 4 have no application to the present case as preliminary decree in
the suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 took
place subsequently in 1997, 1999 and 2001, respectively. Thus there can be no
abatement of the suit on account of the death of the defendants 4-6 after
passing of the preliminary decree. So there was no necessity for the petitioners
to file petitions for condonation of delay in seeking to set aside abatement and
to set aside abatement. So the order of the court below holding that they should
have filed such applications and explained day to day delay in respect of each
of the deceased defendants is contrary to law and unsustainable.
23. The purpose of filing a final decree petition is to ensure that a
Commissioner is appointed to divide the property by metes and bounds and to
determine profits, if any, awarded in the preliminary decree. The petitioners
intended that all the affected parties be informed of the final decree
proceedings so that they may not suffer and the final decree is not passed
behind their back. Admittedly, all the legal representatives of the deceased
respondents 4-6 were shown as respondents in the final decree petition IA.No.493
of 2003. In my opinion, it would merely suffice if they impleaded the legal
representatives of the deceased respondents 4-6 in it, which they did. No
exception can be taken to this.
24. It is most unfortunate that the trial court ignored the settled legal
position and dismissed the I.A 493/2003 for passing final decree on untenable
grounds and in a perverse manner. Such orders are likely to cause the parties to
lose faith in the institution of Judiciary itself.
25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly she
is not the legal heir of any of the deceased respondents and is not prejudiced
in any manner, if the petitions for condonation of delay in filing the
applications to set aside abatement and to set aside the abatement (assuming for
the sake of argument that as per law they should be filed), are not filed by
petitioners. By raising these untenable technical pleas she has managed to enjoy
the plaint schedule properties from 1984 till this day.
26. Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 in
OS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak
District is set aside. IA.No.493 of 2003 is restored to the file of the Sr.
Civil Judge, Medak. The said court shall issue notices to all the respondents
and take steps to do the needful to pass a final decree in the suit. The Civil
Revision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paid
by 3rd respondent to petitioners.
27. Miscellaneous applications pending, if any, shall stand closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date :13-11-2013
The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003
for appointment of a Commissioner for submitting a report so that a final decree
can be passed in the suit. Since the respondent no.s 4-6 had died and their
legal representatives would also have to be given notice in the final decree
petition I.A.493/2003, they also sought for condonation of delay of 1053 days in
bringing their legal representatives on record, to set aside the abatement
caused by their death and to bring them on record as legal representatives of
the deceased respondent no.s 4-6/defendant no.s 4-6. In the array
of parties, all the legal representatives of respondents 4-6 were also
indicated. =
When parties to a suit die, under Order XXII Rule
10A of CPC, it is incumbent on the counsel appearing for that party to furnish
details of the date of death and the details of the legal representatives along
with their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).
It has to be seen as to
what provision is applicable when O.22 Rules 1, 3 and 4 are not applicable in
case of death of parties during the final decree proceedings.
7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation or
devolution of any interest other than the cases referred to in remaining Rules
of or.22, the suit may by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved.
When Or.22 Rules 3
or 4 is not applicable in cases of death during the final decree proceedings,
one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on record
In T. Mangaraju v. K. Ganamma6, this Court held :
"Once preliminary decree is passed it cannot be said that the cause of action
dies along with the person nor dies it require that the LRs. should claim the
cause of action by being brought on record within the period of limitation
prescribed. In other words on account of the passing of the preliminary decree
the right stands recognised by the Court. All that is required is that the
final decree proceedings should be taken up at the instance of the party
claiming and in that view there is no question of any abatement nor does it
require that the abatement be set aside. The provision of Order 22 Rule 3 and 4
does not apply to a case where the holders dies after passing a preliminary
decree."(emphasis supplied)
In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :
"22. ... ... ... it is clear that by passing of preliminary decree, the rights
of the parties stand recognized and determined by the Court and the only thing
that is left is passing of the final decree.
Therefore after passing of a
preliminary decree if the plaintiff dies, since no final decree can be passed on
a dead person, it is essential to permit his legal representatives to come on
record.
Hence, after such determination and recognition of rights, if the
plaintiff dies, there is no question of any abatement and the suit cannot be
dismissed on the ground of abatement, after passing of a preliminary decree,
except in an appeal or in a revision." (emphasis supplied)
In view of the above legal position, I am of the opinion that Order XXII
Rule 3 and 4 have no application to the present case as preliminary decree in
the suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 took
place subsequently in 1997, 1999 and 2001, respectively. Thus there can be no
abatement of the suit on account of the death of the defendants 4-6 after
passing of the preliminary decree. So there was no necessity for the petitioners
to file petitions for condonation of delay in seeking to set aside abatement and
to set aside abatement. So the order of the court below holding that they should
have filed such applications and explained day to day delay in respect of each
of the deceased defendants is contrary to law and unsustainable.
It is most unfortunate that the trial court ignored the settled legal
position and dismissed the I.A 493/2003 for passing final decree on untenable
grounds and in a perverse manner. Such orders are likely to cause the parties to
lose faith in the institution of Judiciary itself.
25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly she
is not the legal heir of any of the deceased respondents and is not prejudiced
in any manner, if the petitions for condonation of delay in filing the
applications to set aside abatement and to set aside the abatement (assuming for
the sake of argument that as per law they should be filed), are not filed by
petitioners. By raising these untenable technical pleas she has managed to enjoy
the plaint schedule properties from 1984 till this day.
26. Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 in
OS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak
District is set aside. IA.No.493 of 2003 is restored to the file of the Sr.
Civil Judge, Medak. The said court shall issue notices to all the respondents
and take steps to do the needful to pass a final decree in the suit. The Civil
Revision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paid
by 3rd respondent to petitioners.
27. Miscellaneous applications pending, if any, shall stand closed.
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CRP.No.4557 of 2007
13-11-2013
Ausali Siddiramulu (Died per LR's) and others...Petitioners/ Petitioners
Ausali Dubbaiah, S/o.Sheshaiah (Died per LR.s)and others
...Respondents/Respondents
<GIST:
>HEAD NOTE:
Counsel for the Petitioner/Petitioners :Sri A. Rajamalla Reddy
Counsel for the Respondents/Respondents:Sri C.R. Pratap Reddy
Sri K. Goverdhan Reddy
?Cases referred:
1. AIR 1983 SC 1202
2. (2009) 9 SCC 689
3. 1991 (3) ALT 513
4. AIR 1924 P.C. 198
5. AIR 1962 Pat. 178
6. 1979 (1) APLJ 54 (NRC)
7. 2003 (3) ALD 585
The Court made the following : [order follows]
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CRP.No.4557 of 2007
ORAL ORDER :
1. This Revision is filed challenging the order dt.29.12.2005 in IA.No.493 of
2003 in OS.No.2 of 1984 on the file of the Court of the Sr. Civil Judge, Medak,
Medak District.
2. The petitioners are the legal representatives of one Siddiramulu, who was
the plaintiff in the above suit. He filed the said suit for partition of the
plaint schedule properties and for recovery of possession of his half share
therein. Siddiramulu died pending suit and his wife and children were brought
on record. A preliminary decree of partition was passed in the suit on
28.09.1984.
3. Challenging the said decree, Respondent Nos.1 to 6 herein filed AS.No.25 of
1984 before the District Judge, Medak. The said appeal was dismissed on
13.11.1987.
4. The 3rd respondent herein filed SA.No.174 of 1998 in this Court challenging
the same. On 18.09.2000 the said Second Appeal was also dismissed.
5. It appears that one Reddi Lachaiah, who is the 4th respondent/4th defendant
in the suit, died in the year 2001 leaving behind respondent Nos.17 and 18 as
his legal heirs. Likewise, Raja Timmaiah, the 5th respondent/5th defendant also
died in 1999 leaving behind the 16th respondent as his legal heir. The 6th
respondent/ 6th defendant in the suit, also died leaving behind the 14th
respondent as his legal heir.
6. The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003
for appointment of a Commissioner for submitting a report so that a final decree
can be passed in the suit.
Since the respondent no.s 4-6 had died and their
legal representatives would also have to be given notice in the final decree
petition I.A.493/2003, they also sought for condonation of delay of 1053 days in
bringing their legal representatives on record, to set aside the abatement
caused by their death and to bring them on record as legal representatives of
the deceased respondent no.s 4-6/defendant no.s 4-6.
In the array of parties, all the legal representatives of respondents 4-6 were also
indicated.
7. The 3rd respondent filed a counter opposing the said application contending
that the application is vague and vexatious and there is no specific prayer in
the petition;
that specific dates of the death of the deceased were not given;
that the petitioners ought to explain the delay in respect of the each of the
deceased; they also ought to file separate petitions in respect of each of the
respondent no.s4-6, for condonation of delay in seeking to set aside abatement,
to set aside abatement and to bring on record the legal representatives.
It is
also stated that pending Second Appeal before the High Court, the death of these
persons was not reported, and therefore, the 3rd respondent could not take steps
to bring them on record in the Second Appeal which she had filed.
8. By order dt.29.12.2005, the Court below dismissed the said I.A.
In the said
order, the trial court noted that the petitioner did not add the legal
representatives of the deceased in SA.No.174 of 1998 which had been disposed of
on 18.09.2000; that the petitioners did not give even the date of the deaths of
the deceased respondents; the delay is not properly explained; and there were
latches on the part of the petitioners.
9. Aggrieved thereby, the present Revision is filed.
10. Heard the counsel for petitioners and the counsel for 3rd respondent.
11. Respondent Nos.1, 2, 4 to 6 have died. Respondent Nos.7, 11 and 14 refused
to receive the notices sent by Court and therefore, they are deemed to be
served. Respondent Nos.8 to 10 and 17 were served but none appears on their
behalf.
12. The counsel for the petitioners contended that the reasoning of the Trial
Court is perverse; when SA.No.174 of 1998 was filed in this court by 3rd
respondent/3rd defendant, the trial court ought not have blamed the petitioners
for not bringing to the notice of this Court, the death of these persons or for
not bringing their legal representatives on record in the Second Appeal; that
under Order XXII Rule 10A of CPC, it was incumbent on the counsel who appeared
for the deceased parties in the suit to give information about the date of death
and the details of legal representatives of the deceased defendants to the
petitioners;
that the petitioners were not aware of these details and therefore,
they could not mention the specific dates of death of these individuals.
It is
also stated that since there is no time limit to file an application to pass a
final decree in a suit for partition, in the application filed to pass a final
decree, the petitioners are entitled to state that these persons have died and
their legal representatives be brought on record by condoning the delay, if any,
in filing applications to set aside the abatement.
He also contended that all
procedure is a hand-maid of justice and the mere fact that separate applications
in respect of each of the deceased respondents are not filed, it is not open to
the trial court to dismiss the application for passing final decree under under
Order XX Rule 18 CPC.
13. On the other hand, the counsel for 3rd respondent supported the decision of
the trial court. He contended that without the dates of death of the deceased
respondents being mentioned, the I.A 493/2003 cannot be entertained.
14. I have noted the submissions of the parties.
15. It is not disputed that the SA.No.174 of 1998 is filed by
3rd respondent in this Court and it was dismissed on 18.09.2000. When the 3rd
respondent/3rd defendant had filed SA.No.174 of 1998 in this Court , and the
petitioners had not filed it, the trial court cannot blame the petitioners for
not taking steps to bring on record the legal representatives of the deceased
respondents in that Second Appeal.
16. The Court below also mentioned that the dates of death of the deceased were
not given by the petitioners.
When parties to a suit die, under Order XXII Rule
10A of CPC, it is incumbent on the counsel appearing for that party to furnish
details of the date of death and the details of the legal representatives along
with their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).
Admittedly, this has not been done. When none of the respondents furnished the
date of death to the petitioners, to expect the petitioners to give the exact
date of death of the respondent Nos.4, 5 and 6 is perverse. A party cannot be
compelled to give information which he did not know. So this finding of the
trial court also cannot be sustained.
17. Once a preliminary decree is passed, the shares of the parties to the suit
are determined. What remains to be done is the division of property by metes
and bounds. As per law, admittedly, there is no time limit fixed for filing an
application to pass a final decree in a suit for partition (See Shub Karan Bubna
v. Sita Saran Bubna2). Therefore, the mere fact that the application for final
decree is filed in 2003 cannot be held against the petitioners.
18. It is pertinent to note that the death of the above parties occurred after
the passing of the preliminary decree. The question is whether there is any
abatement of the suit on account of death of a party to the suit after passing
of the preliminary decree but before passing of final decree.
19. This Court in S. Mohan Reddy v. P. Chinnaswamy3 held :
"3. It is well-established proposition of law that a suit cannot be dismissed
on ground of abatement after a preliminary decree was passed for thereby rights
are accrued to one party and liabilities are incurred by the other : vide
Lachiminarayan vs. Balmadund4. It was observed therein:
'After a decree has once been made in a suit, the suit cannot be
dismissed unless the decree is reversed on appeal. The parties have on the
making of the decree acquired rights or incurred liabilities which are fixed
unless or until the decree is varied or set aside.'
After a decree, any party can apply to have it enforced. As such, the
suit does not abate under Or.22 Rules 1, 3 and 4 CPC after a preliminary decree
is passed. But, it is equally a general principle of law that a decree cannot
be passed in favour of or against a dead person."
... ... ...
6. As I already observed, a suit cannot be dismissed except on appeal or by
review after a preliminary decree is passed. It follows that there cannot be
abatement of the suit even if the L.Rs. of the deceased party are not brought on
record during the final decree proceedings. But, even a final decree cannot be
passed for or against a dead person. So, it is necessary to bring on record the
L.Rs. of the deceased before a final decree is passed. It has to be seen as to
what provision is applicable when O.22 Rules 1, 3 and 4 are not applicable in
case of death of parties during the final decree proceedings.
7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation or
devolution of any interest other than the cases referred to in remaining Rules
of or.22, the suit may by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved. When Or.22 Rules 3
or 4 is not applicable in cases of death during the final decree proceedings,
one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on record. Ramsewak vs.
Mt. Deorathi5 lends support to the said proposition." (emphasis supplied)
20. In T. Mangaraju v. K. Ganamma6, this Court held :
"Once preliminary decree is passed it cannot be said that the cause of action
dies along with the person nor dies it require that the LRs. should claim the
cause of action by being brought on record within the period of limitation
prescribed. In other words on account of the passing of the preliminary decree
the right stands recognised by the Court. All that is required is that the
final decree proceedings should be taken up at the instance of the party
claiming and in that view there is no question of any abatement nor does it
require that the abatement be set aside. The provision of Order 22 Rule 3 and 4
does not apply to a case where the holders dies after passing a preliminary
decree."(emphasis supplied)
21. In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :
"22. ... ... ... it is clear that by passing of preliminary decree, the rights
of the parties stand recognized and determined by the Court and the only thing
that is left is passing of the final decree.
Therefore after passing of a
preliminary decree if the plaintiff dies, since no final decree can be passed on
a dead person, it is essential to permit his legal representatives to come on
record.
Hence, after such determination and recognition of rights, if the
plaintiff dies, there is no question of any abatement and the suit cannot be
dismissed on the ground of abatement, after passing of a preliminary decree,
except in an appeal or in a revision." (emphasis supplied)
22. In view of the above legal position, I am of the opinion that Order XXII
Rule 3 and 4 have no application to the present case as preliminary decree in
the suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 took
place subsequently in 1997, 1999 and 2001, respectively. Thus there can be no
abatement of the suit on account of the death of the defendants 4-6 after
passing of the preliminary decree. So there was no necessity for the petitioners
to file petitions for condonation of delay in seeking to set aside abatement and
to set aside abatement. So the order of the court below holding that they should
have filed such applications and explained day to day delay in respect of each
of the deceased defendants is contrary to law and unsustainable.
23. The purpose of filing a final decree petition is to ensure that a
Commissioner is appointed to divide the property by metes and bounds and to
determine profits, if any, awarded in the preliminary decree. The petitioners
intended that all the affected parties be informed of the final decree
proceedings so that they may not suffer and the final decree is not passed
behind their back. Admittedly, all the legal representatives of the deceased
respondents 4-6 were shown as respondents in the final decree petition IA.No.493
of 2003. In my opinion, it would merely suffice if they impleaded the legal
representatives of the deceased respondents 4-6 in it, which they did. No
exception can be taken to this.
24. It is most unfortunate that the trial court ignored the settled legal
position and dismissed the I.A 493/2003 for passing final decree on untenable
grounds and in a perverse manner. Such orders are likely to cause the parties to
lose faith in the institution of Judiciary itself.
25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly she
is not the legal heir of any of the deceased respondents and is not prejudiced
in any manner, if the petitions for condonation of delay in filing the
applications to set aside abatement and to set aside the abatement (assuming for
the sake of argument that as per law they should be filed), are not filed by
petitioners. By raising these untenable technical pleas she has managed to enjoy
the plaint schedule properties from 1984 till this day.
26. Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 in
OS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak
District is set aside. IA.No.493 of 2003 is restored to the file of the Sr.
Civil Judge, Medak. The said court shall issue notices to all the respondents
and take steps to do the needful to pass a final decree in the suit. The Civil
Revision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paid
by 3rd respondent to petitioners.
27. Miscellaneous applications pending, if any, shall stand closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date :13-11-2013
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