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2021 Supreme(Bom) 685

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
V.L. Achliya, J.
Eknath Chagan Shinde & Ors. - Appellants
Versus
Parvatabai Eknath Shinde & Ors. - Respondents
Civil Application No. 7633 of 2020, First Appeal No. 195 of 2018, Civil Application No. 8064 of 2020, First Appeal No. 194 of 2018
Decided On : 10-02-2021

Advocates appeared:
Mr.A.M. Hajare, Advocate, for the Appellant / Mr.A.A. Jagatkar, Advocate, for the Respondent.

Headnote:

Legal Representatives - Entitlement to Withdrawal of Amount - Order XXII Rule 4, Order XXII Rule 11 - The applications filed by the legal representatives of the deceased respondent no.1 after the final disposal of appeals were found to be misconceived and not maintainable in law. The court observed that the enabling provisions for bringing the legal representatives of the deceased defendant or respondents can only be invoked during the pendency of the suit or appeal. The court dismissed the applications as not maintainable and directed the transfer of the amount to the Reference Court for satisfaction of the award passed by the Reference Court in respective cases.

Fact of the Case:

The applicants sought to bring their names on record as legal representatives of the deceased respondent no.1 in respective appeals by condoning the delay. The acquiring body had preferred appeals challenging the awards passed by the Reference Court, but the legal representatives were not brought on record. The appeals were eventually withdrawn, and the applicants, as legal representatives, sought to withdraw the amount deposited by the acquiring body in terms of the awards.

Finding of the Court:

The court found that the applications filed by the legal representatives after the final disposal of appeals were misconceived and not maintainable in law. The court directed the transfer of the amount to the Reference Court for satisfaction of the award and granted the applicants liberty to make appropriate applications before the Reference Court or Executing Court for withdrawal of the amount.

Issues: The main issue was the entitlement of the legal representatives to withdraw the amount deposited by the acquiring body in terms of the awards passed by the Reference Court, and the maintainability of the applications filed by the legal representatives after the final disposal of appeals.

Ratio Decidendi: The court held that the enabling provisions for bringing the legal representatives of the deceased defendant or respondents can only be invoked during the pendency of the suit or appeal. As the appeals had been finally disposed of, the applications filed by the legal representatives were found to be misconceived and not maintainable in law.

Final Decision: The applications filed by the legal representatives were dismissed as not maintainable, and the court directed the transfer of the amount to the Reference Court for satisfaction of the award passed by the Reference Court in respective cases. The applicants were granted liberty to make appropriate applications before the Reference Court or Executing Court for withdrawal of the amount.

ORDER

1. The applicants have preferred these applications to bring their names on record as legal representatives of the deceased respondent no.1 in respective appeals by condoning the delay.

2. In brief, it is the contention of learned counsel for the applicants that they are the legal representatives of the deceased respondent no.1 in respective appeals preferred by the appellant -acquiring body. The Reference Court enhanced the compensation vide judgment and awards dated 27.10.2020 and 30.10.2020 passed in respective References made by the deceased respondent No.1. After period of more than six years of the judgment and awards passed by the Reference Court, the acquiring body preferred appeals challenging the said awards along with applications seeking condonation of delay. Pursuant to notice issued to respondent no.1 in said application, the bailiff reported that the respondent no.1 in both the appeals had died on 16.01.2012 and 12.09.2011 respectively. He has also annexed the death certificates in respect of respondent no.1 in both the appeals. After receipt of reports, the appeals were listed before the Court on 03.10.2017. The Advocate representing the appellant acquiring body sought time to bring legal representatives of the deceased respondents on record. In order to take steps to bring the legal representatives of the deceased on record, the appeals were adjourned and posted on 6th November, 2 017. On 2 8th November, 2 017, the applicants appeared and filed applications through their Advocate to bring their names on record as legal representatives of respondent no.1 in respective appeals, still the appellant has not taken any steps to bring legal representatives on record. However, the delay was condoned though the Respondent No.1 in respective appeals were dead. Even after delay was condoned and the appeals were registered, the appellant acquiring body has not taken any steps to bringlegal representatives of the deceased Respondent no.1 on record. Appeals were placed before the Lok-Adalat held on 14.07.2018. The appellant acquiring body withdrawn the appeals. Accordingly, the order as to disposal of appeals as withdrawn passed on 14.07.2 018. It is submitted that the appellant have deposited the amount in terms of award passed by the Reference Court pursuant to the conditional order granting stay passed in both the appeals. In absence of their names brought on record as legal representatives of the deceased Respondent No.1, they are not entitled to withdraw the amount. In order to overcome the situation, they have preferred these applications.

3. Learned counsel for the applicants submits that based upon identical facts, this Court has entertained such applications and allowed the legal representatives of the deceased respondent to bring their names on record though the appeals were disposed of. In this context, learned counsel has referred the order dated 14.06.2019 passed by this Court (Coram: Smt.Vibha Kankanwadi, J) in Civil Application No.6487/2019 filed in First Appeal No.198/2018 and the order dated 29.11.2019 passed by this Court (Coram: Mangesh S. Patil, J) in Civil Application No.4965/2019 filed in First appeal No.793/2018.

4. Since it was noticed that invariably the applications claiming similar reliefs are filed by the legal representatives of the deceased respondents in disposed of appeals and the applications are processed without scrutinizing the same, the Registrar (Judicial) was requested to examine the maintainability of such applications and suggest the remedial measures to overcome such situation.

5. Pursuant to the order dated 11.12.2 02 0 passed by this Court, the Registrar (Judicial) has examined the record and proceedings of both the cases and submitted detailed report. The Registrar(Judicial) has observed in report as under :-

"In this background, I submit with utmost respect that having considered ambit and scope of Order XXII of the Code of Civil Procedure, the present Civil Applications filed b

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