A legal representative can be brought on record without an application when the party is already on record and the suit does not abate on the death of a defendant when the right to survives and the other defendants are in possession of the suit properties.

J. ESWARA PRASAD, J.

( 1 ) THE petitioner is questioning the order of the Lower Court, recording the first respondent as the legal representative of the deceased-first defendant in the suit. The first respondent herein, is the plaintiff in the suit filed for partition and separate possession of his share of the suit properties, claiming to be the adopted son of the deceased-first defendant The other respondents are formal defendants in the suit against whom no relief was claimed. On the death of the first defendant, the plaintiff filed a memo into the Court and the court below recorded the plaintiff as the legal representative of the deceased-first defendant. It is against this order the present revision is filed.

( 2 ) THE learned counsel for the petitioner Sri C N Babu, argued, that a legal representative can be brought on record only on an application to be filed in accordance with the provisions of Order 22 of the Code of Civil Procedure and that the Court below was in error in passing orders on the mere Memo filed by the plaintiff. He further contended that, with the death of the first defendent, the suit abated and no part of the cause of action survied against the other defendent, as no relief was claimed against them. His contention is that since the deceased-first defendant, when alive, di puted the claim of the plaintiff that he is his adopted son it is not open to the Court to record the plaintiff as the adopted son, which is the very question to be decided in the suit. The learned Counsel further aigued that the plaintiff, as the legal representative of the deceased-first defendant, is bound to take the same stand which the first defendent had taken and deny his own right to claim for partition as ths adopted son, and that it sounds in-congrouous for the plain" tiff to take inconsistent stands as the plaintiff as wall as the legal representative of the deceased-first defendant.

( 3 ) SRI Koka Raghava Rao, learned counsel for the respondents supported the order of the lower Court and contended that there need net be any application to record the plaintiff as the legal representa. tive of the deceased-first defendant, as he is already on record and that there is no irregularity in the order of the Lower Court. He further contended that the suit did not abate on the death of the first defendant as the other defendants where in possession of the suit properties by virtue of documents executed in their favour by the deceased first defendant, and that in fact, the plaint was subsequently amended by claiming reliefs agains? the other defendants he argued that the plaintiff will not file aay statement inconsistent with the plea takea by the deceased-first defendant; and that the Order under revision needs HO interference.

( 4 ) THE point that arises for consideration in the light of the rival contentions of the parties is, whether the Court below was correct in recording the plaintiff as the legal representative of the deceased- first defendant ?

( 5 ) THE first re-spondeat filed that suit for partition claiming to be the adopted son of the deceased-first defendant. He is already on record as the plaintiff. It is therefore not necessary that an application should have been filed tor recording the first respondent as the legal representative of the deceased first defendant. In 1982 sc 948 (Mohammed Arif vs. Allah Rabbul alimin and others) it has been hold that there is no necessity of an application to bring on record as a legal representative of the deceased when the party is already on reoord. Hence, the Court below was right in recording the first respondent as the legal representative on the memo filed by him. The first contention of the learned counsel for the petitioner is therefore rejected.

( 6 ) A written statement was filed by the petitioaer, who is the 2nd defendant in the suit, denying that the first respondent is the adopted son of the deceased- first defendant, and that defendants 2 to 7 are in possession of the

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