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1970 Supreme(AP) 113
Andhra Pradesh High Court
Judges : KODANDA RAMAYYA
Batbala Venkatapsrayya - Appellant
Versus
Ganuguntla Adilakshmamma - Respondent
Decided On : 04-20-70
The legal representatives of a deceased party can be brought on record even after the expiry of the period of 90 days provided under Order 22, of the Code of Civil procedure, if they are necessary and proper parties.
Headnote:
ABATEMENT OF SUIT - LEGAL REPRESENTATIVES - APPLICATION TO BRING ON RECORD - LIMITATION - CODE OF CIVIL PROCEDURE, 1908 - ORDER 1, RULE 10 AND ORDER 22, RULES 3 AND 4 - INTERPRETATION - LEGAL REPRESENTATIVES CAN BE BROUGHT ON RECORD EVEN AFTER EXPIRY OF 90 DAYS IF THEY ARE NECESSARY AND PROPER PARTIES.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of his share in the plaint schedule property. The 4th defendant died during the pendency of the suit. The plaintiff filed applications to bring the legal representatives of the deceased 4th defendant on record, to condone the delay in filing the petition for setting aside the abatement, and to set aside the abatement of the suit. The proposed legal representatives also filed an application to implead them as supplemental defendants. The lower court allowed the application of the legal representatives, but dismissed the applications filed by the plaintiff.
Finding of the Court:
The court held that the legal representatives of a deceased plaintiff or defendant can be brought on record within 90 days. If they are not brought on record within the prescribed time, the suit or appeal would abate. However, they can also be brought on record after the expiry of 90 days if there are sufficient reasons to condone the delay in filing the applications. The court further held that the proposed legal representatives can be brought on record under Order 1, rule 10 of the Code of Civil Procedure as they are necessary and proper parties without whose presence there can be no effective and complete adjudication of the questions at issue.
Issues: Whether the order of the lower court in allowing the application of the proposed legal representatives filed beyond 90 days from the date of the death of the 4th defendant is illegal or vitiated by material irregularity in the exercise of its jurisdiction.
Ratio Decidendi: The court relied on the provisions of Order 1, rule 10 and Order 22, rules 3 and 4 of the Code of Civil Procedure, as well as the decisions of the Madras High Court in Kuppuswami Chetti v. Singaravelu Chetty and Ramakrishna v. Narasimha, to hold that the legal representatives of a deceased party can be brought on record even after the expiry of the period of 90 days provided under Order 22, of the Code of Civil procedure. The court also held that the proposed legal representatives can be brought on record under Order 1, rule 10 of the Code of Civil Procedure as they are necessary and proper parties without whose presence there can be no effective and complete adjudication of the questions at issue.
Final Decision: The court dismissed the revision petitions filed by the defendants and the plaintiff, and upheld the order of the lower court allowing the application of the proposed legal representatives.
( 2 ) THE learned Counsel for the contesting defendants, Sri Vidyasagar contends that the order of the Court below in allowing the application of the proposed legal representatives is illegal and is vitiated by material irregularity in the exercise of its jurisdiction. The respondent s learned Counsel, Sri Mallikharjuna Rao contended contra.
( 3 ) THE question for decision is whether the order of the lower Court in allowing the application of the proposed legal representatives filed beyond 90 days from the date of the death of the 4th defendant is illegal or vitiated by material irregularity in the exercise of its jurisdiction.
( 4 ) THUS, as contended by Mr. Vidyasagar, the applications filed by the plaintiff as well as the proposed legal representatives are beyond 90 days from the date of the death of the 4th defendant. The legal representatives of a deceased plaintiff or defendant can be brought on record within 90 days. If the legal representatives are not brought on record within the prescribed time, the suit or appeal, as the case may be, would abate in so far as the deceased defendant or respondent is concerned. However, they can also be brought on record after the expiry of 90 days if there are sufficient reasons to condone the delay in filing the applications. Rules 3 and 4 of Order 22 of the Code of Civil Procedure do not specify as to who should file applications for bringing the legal representatives of the deceased plaintiff or defendant on record; but it admits of no doubt that it is the plaintiff or the appellant who would stand to lose if the legal representatives of the deceased defendant or respondent are not brought on record. Hence, normally it is the plaintiff or the appellant, as the case may be, who has to take steps to bring the legal representatives of the deceased party or record within the prescribed time. Otherwise, the suit or appeal, in so far as the deceased defendant or respondent is concerned, would abate. The intendment of these provisions of the Code of Civil Procedure is to protect the interests of the proposed legal representatives of a deceased party. The legal representatives are entitled to continue or raise such pleas which were available to the deceased party on whose behalf they are made parties. But nowhere in the Code any prohibition is made for the proposed legal representatives to come on record even subsequent to the expiry of the period of 90 days provided under Order 22, of the Code of Civil procedure. The Court may not exercise its discretion in favour of the plaintiff or the appellant to condone the delay in setting aside the abatement and to bring the legal represe
