The duty to bring on record the legal representatives of a deceased defendant lies with the heirs of the deceased, and all legal representatives are required to be brought on record irrespective of their inter se dispute. The determination of legal representatives under Order 22 Rule 5 CPC is only for the purpose of conducting legal proceedings and does not operate as res judicata.

RAJ MOHAN SINGH, J.

1. Vide this common order, CR No.7062 of 2017 titled Ramesh Kumar Rana and another Vs. M/s KLJ Developers Pvt. Ltd. and others and CR No.3102 of 2018 titled Mahender Singh since deceased through his LR Vs. M/s Cadillac Buildwell Pvt. Ltd. and others are being decided. Facts are being culled out from CR No.7052 of 2017.

2. Petitioners have preferred CR No.7052 of 2017 against the order dated 19.09.2017 passed by Additional Civil Judge (Senior Division), Gurugram vide which the application for impleading LRs of deceased Mahender Singh/defendant No.1 was disposed of.

3. Plaintiff filed a civil suit for recovery along with future interest against Mahender Singh (father of the petitioners) and others. Mahender Singh died on 05.11.2010. Plaintiff was aware of the death of Mahender Singh, but did not implead the legal representatives of Mahender Singh. Petitioner No.1 was serving in Indian Army and petitioner No.2 was living abroad. Petitioners were not aware of the pendency of the suit and the plaintiff did not move any application to implead them as necessary parties. The land has already been acquired by the State of Haryana vide award dated 20.06.2012 for the development of sector in urban estate, Gurugram. Petitioners moved an application for impleading them as legal representatives and the said application was dismissed/disposed of vide the impugned order.

4. In the original suit filed by the plaintiffs, they impleaded only Mahender Singh and others. Mahender Singh died during pendency of the suit on 05.11.2010, leaving behind his six legal representatives, details of which are as under:-

"(i) Azad Singh Rana (adopted son of Krishan Lal) (Azad Singh is already impleaded as defendant No.3).

(ii). Lt. General Ramesh Kumar Rana son of Mahender Singh resident of village and P.O. Bajghera, New Palam Vihar, Gurugram.

(iii) Mrs. Saroj Kumari D/o Mahender Singh, resident of H.No.78-A, village and P.O. Madangir, Delhi-62.

(iv) Asil Kumar Rana son of Mahender Singh, resident of Wight Wick Grove, Wolverhampton, West Midlands, UK, 68 BT.

(v) Sumitra Jakhar wife of Jagbir and D/o Sh. Mahender Singh R/o Gali No.9, Bhajanpura, Delhi-53.

(vi) Late Maj. Vinod Kumar Rana (deceased issueless) and his wife re-married with other person."

5. The application was filed by petitioner No.1 for impleading LRs of deceased Mahender Singh on 30.08.2017.

6. Trial Court while disposing of the application came to the conclusion that Mahender Singh was proceeded against ex parte on 11.08.2015. At that time, he was being represented by Ms. Asha Barak, Advocate i.e. the same Advocate who has filed the present application for impleading LRs of deceased Mahender Singh. The suit has reached the stage of defendants evidence. As per Order 22 Rule 2 Sub-Rule 2-A CPC, every Advocate appearing in the case who became aware of the death of a party to the litigation must give intimation of death of that party to the Court and to the person who is dominus litis. The factum of death of Mahender Singh ought to have been disclosed by the learned counsel for the defendants either to the Court or to the plaintiff. No such intimation was given to the Court and to the plaintiff and a dead person was proceeded against ex parte. As per requirement of Order 22 Rule 2 Sub Rule 2-B CPC, the duty to bring on record the LRs of deceased defendant shall be of heirs of the deceased and not of the person who is dominus litis. Since the decree is of recovery and the same can be executed by attachment or by sale of the property of the deceased judgment debtor, therefore, right to sue did not abate. Trial is at the fag end. Trial Court has disposed of the application on the premise that petitioner No.1 would be at liberty to join the proceedings at this stage as Azad Singh Rana is already defending the suit being defendant No.3. Other LRs of the deceased would also be at liberty to join the proceedings and there is no necessity to issue any notice to them.

7. At this stage, inte