A preliminary decree in a partition suit prevents abatement, and counsel's failure to report deaths does not impede the legal process for bringing in representatives, as established by Order XXII Rule 10A.

ORDER :

V. LAKSHMINARAYANAN, J.

This Civil Revision Petition arises against the order passed by the learned District Judge, Karaikal, in I.A.No.66 of 2018 in I.A.No.178 of 2017 in O.S.No. 21 of 1993, dated 18.12.2019.

2. O.S.No.21 of 1993 is a suit for partition and separate possession.The said suit came to be dismissed by the learned Trial Judge, in and by way of a judgment and decree, dated 05.08.1997.

3. Aggrieved by the same, an appeal was preferred to this Court in A.S.No.76 of 1999. In and by way of a judgment dated 26.11.2013, the appeal was allowed and the judgment and decree of the Trial Court in O.S.No.21 of 1993 was set aside. This Court declared that the appellant / 1^st plaintiff and respondents 8 to 15, who were plaintiffs 2 to 9, are entitled to partition of 42/120 share in the plaint 'A' & 'B' schedule mentioned properties. As the appeal had been allowed, liberty was granted to the appellant / 1^st plaintiff and plaintiff Nos.2 to 9 / respondents 8 to 15 in the appeal, to seek for appointment of an Advocate Commissioner and for passing of a final decree.

4. After the appeal came to be allowed, the 4^th respondent in the appeal, one Hadja Fakrudeen, filed an application in C.M.P.No.158 of 2015. He sought to set aside the judgment and decree dated 26.11.2013 in A.S.No.76 of 1999. He pleaded that as his counsel was not available in the Court, on the day when the appeal was taken up for hearing, the appeal had been allowed. Therefore, he sought for restoration of the appeal and for disposal of the same on merits.

5. Pending the application to set aside the judgment dated 26.11.2013, the 1^st appellant had passed away. Therefore, the 4^th respondent took out applications in C.M.P.Nos.2535 to 2537 of 2016 in C.M.P.No.158 of 2015 to bring on record the legal representatives of the deceased 1^st appellant.

6. Considering the plea of the 4^th respondent, the appeal came to be restored. The legal heir of the deceased sole appellant, Abdul Kader Maricar, namely, one Zubaitha Ammal, was brought on record on 25.01.2017. Thereafter, the appeal was heard all over again. Yet again, this Court set aside the judgment and decree of the learned Trial Judge and the suit for partition was decreed. The appeal was allowed on 05.05.2017.

7. Thereafter, Zubaitha Ammal filed an application in I.A.No.178 of 2017, for passing of final decree. Summons were sent and served on most of the respondents in that application. A counter was also filed by the contesting respondent, Mr.Hadja Fakrudeen. At that stage, it came to light on 09.11.2017, that the respondents 3, 5, 6 & 8 to 10 had passed away. Therefore, Zubaitha Ammal filed an application in I.A.No.66 of 2018 to bring on record the legal representatives of the deceased respondents 3, 5, 6 & 8 to 10. Along with the said application, death certificates of those respondents had also been enclosed.

8. The learned District Judge ordered notice to the proposed parties as well as to the respondents in that application. The respondents 11 to 15 and 19 had no objection to the petition being allowed. Respondents 4 & 32 alone filed a counter. The other respondents did not file a counter and therefore, the learned District Judge, forfeited their opportunity to file a counter. He took up the petitions for enquiry. The learned Judge came to the following conclusion:

(i) In terms of Order XXII Rule 10A of the Code of Civil Procedure, 1908, a counsel has a duty to report the death of his / her clients and since the petitioner did not take any steps to get the details, she is at fault.

(ii) As per Article 120 of the LIMITATION ACT , the applicatio