Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
S.B.PD.SINGH
Binod Rani Agrawal W/o Late Awadhesh Kumar Das – Appellant
Versus
Rinki Kumari @ Rinki Devi W/o Shri Kishore Yadav @ Kishore Prasad – Respondent
| Table of Content |
|---|
| 1. legal background of mortgaged property and death of mortgagor. (Para 1 , 2) |
| 2. arguments regarding applicability of order xxii rule 4 cpc. (Para 3 , 4 , 5) |
| 3. analysis of evidence confirming death of awadhesh kumar das. (Para 6) |
| 4. statutory provisions regarding suit against deceased. (Para 7) |
CAV JUDGMENT :
2. As per respondent’s case, the plaintiff/ respondent (mortgagee) asked again and again to Shri Awadhesh Kumar Das (mortgagor) to return the loan amount and take back the suit property but he completely refused and hence, lastly he filed the said Title Suit No. 77 of 2017 for declaration of right title and interest over the suit property. Learned counsel for the petitioners submits that respondent/plaintiff has filed a Title Suit, bearing No. 77 of 2017, in the Court of learned Sub Judge I, Munger regarding the property mortgaged by Shri Awadhesh Kumar Das (since deceased) in favour of respondent by registered mortgaged deed, dated 26.05.2014.
4. To buttress his argument, learned counsel for the petitioner placed reliance on the judgment of Orissa High Court, passed in Cuttak Municipality vs. Shyamsundar Behera [AIR 1977 Orissa 137] has held that a suit against a
A suit against a deceased party is a nullity, and no substitution can be made if the party was deceased at the time of filing, as per Order XXII Rule 4 of the Code of Civil Procedure.
Substitution – If a defendant has already expired prior to institution of suit, his legal representatives cannot be brought on record under Order XXII Rule 4 CPC.
An appeal filed against a deceased sole defendant is a nullity; proper procedure requires withdrawal of the appeal with liberty to file a fresh one involving the legal heirs.
Legal representatives of deceased parties can seek substitution; amendments to pleadings are permitted to promote effective adjudication and safeguard substantive rights over rigid procedural complia....
Delay of 27 days in filing substitution petition was justified to ensure proper adjudication.
The trial court erred by abating the suit without proper inquiry into legal representation, as abatement is procedural and not substantive, requiring adherence to the principles laid out under Order ....
Point of law: Decree in Suit – Abatement of Appeal - In cases where an appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased ....
Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.
Amendment to pleadings concerning deceased defendants allows for exemption from substitution if they were ex parte and had no interest in the proceedings, and such request is not limited by the 90-da....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
