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2021 Supreme(Ker) 890
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, SOPHY THOMAS, JJ.
Soumya S. – Appellant
Versus
Shan P.G. (Died), S/o.Sumathikuttiyamma – Respondent
MAT.Appeal No. 663 of 2014
Decided on : 29-10-2021
Advocate Appeared:
For the Appellant : SRI.T.P.PRADEEP, SRI.P.K.SATHEESH KUMAR
For the Respondent: SRI.V.SETHUNATH
Point of Law: Order XXII Rule 2 CPC requires the court to cause an entry to be made on the record to the effect that the suit survives against the surviving defendant or defendants.
Headnote:
Civil Procedure Code, 1908 - Order XXII - Rule 1 and 2 - Procedure where one of several plaintiffs or defendants dies and right to sue survives - Recovery of patrimony - Aggrieved by judgment and decree, the appellant preferred this appeal alleging that she has to get back Rs.3 lakh being the patrimony amount deposited by her father in her bank account which was subsequently paid to the 1st respondent along with 92 sovereigns of gold ornaments or its equivalent value, and also the movables or its equivalent value amount - According to her, respondents 1 to 3 and their assets, are to be held liable for her claim.
Finding of the court: When the legal representatives of the deceased are already in the party array, the question of recording is only a matter of procedure, and any irregularity in the matter of procedure would not affect the principle of law, as to abatement. Even if no formal application was made to record the legal representative of the deceased, who was already in the array of parties, there would be no abatement. The delay in filing a memo to record the appellant-wife and the 3rd respondent as the legal heirs of the deceased 1st respondent, will not empower the court to record abatement, as the right to sue survived and the legal representatives, representing the estate of the deceased were already on the party array - Set aside the impugned judgment and decree.
Result: Appeal dismissed
JUDGMENT :
Sophy Thomas, J.
This is an appeal preferred by the petitioner in O.P No.381 of 2010 of Family Court, Thiruvalla against the judgment and decree dated 17.05.2014.
2. The appellant/wife filed the above O.P for recovery of patrimony. The Family Court allowed the O.P in part, permitting the appellant to realise Rs.50,000/-with interest at the rate of 8% per annum from the date of the petition till realisation and also to get back the movables or its equivalent value Rs.36,000/-from respondents 2 and 3 who are the brother and mother of her deceased husband. The 1st respondent-husband is no more and the lower court ordered that the case against him was abated, as no steps were taken by the appellant/petitioner to implead his legal heirs. Aggrieved by the judgment and decree, the appellant preferred this appeal alleging that she has to get back Rs.3 lakh being the patrimony amount, and Rs.65,000/-deposited by her father in her bank account which was subsequently paid to the 1st respondent along with 92 sovereigns of gold ornaments or its equivalent value, and also the movables or its equivalent value Rs.68,000/-. According to her, respondents 1 to 3 and their assets, are to be held liable for her claim.
3. The 2nd respondent, who is the brother of her deceased husband, admitted receipt of Rs.50,000/-from the father of the appellant to meet the marriage expenses. The 3rd respondent, mother of respondents 1 and 2, was admitting entrustment of an Air Conditioner, Nilavilakku and dinner set worth Rs.36,000/-in total. Accordingly, a decree was passed to that extent against respondents 2 and 3, and no decree was passed against the 1st respondent or his assets finding that, case against him was abated. Now the short question to be considered is whether the case against the 1st respondent will abate for want of steps from the side of the appellant/petitioner to implead his legal heirs.
4. Admittedly, during the pendency of O.P No.381 of 2010, the 1st respondent/husband passed away on 22.08.2010. On 26.10.2010 itself, the death of the 1st respondent was reported before the Family Court. On 21.01.2011, the Family Court recorded the case against the 1st respondent as abated, as no steps were taken. In the impugned judgment, the Family Court observed that some of the ornaments owned by the wife might have been entrusted with her husband, and though it was clear from Exts.A3 to A7 documents, that he had either sold or pledged her gold ornaments, since the case against him was abated, no decree could have been passed against him. Now we have to find out whether the abatement recorded against the 1st respondent was proper or legal.
5. Order XXII CPC deals with abatement, on party's death. Order XXII Rule 1 CPC says that death of a plaintiff or defendant shall not cause the suit abated if the right to sue survives. Order XXII Rule 2 CPC reads as follows:
“2. Procedure where one of several plaintiffs or defendants dies and right to sue survives:
Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants”.
6. In the case in hand, the 1st respondent died on 22.08.2010. Respondents 2 and 3 are his brother and mother, and it was evident from their address itself. Moreover, since the O.P being a matrimonial dispute, the relationship between the parties were so explicit in the pleadings itself. The Family Court, without causing an entry to the effect that the right to sue survives and the legal heirs of the 1st respondent are already in the party array, proceeded to record that the case against the 1st respondent abated as no steps were taken by respondents 2 and 3. Respondents 2 and 3 filed a
