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S. B. PD. SINGH
Binod Rani Agrawal – Appellant
Versus
Rinki Kumari @ Rinki Devi – Respondent
JUDGMENT (CAV)
Present Civil Misc. has been preferred to set aside the order dated 19.07.2023, passed in Title Suit No. 77 of 2017 whereby and whereunder the learned Sub Judge-I, Munger has allowed the substitution petition, filed by the plaintiff/respondent under Order XXII Rule 4 of the Code of Civil Procedure without application of judicial mind.
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.
3. Learned counsel for the petitioner submits that from a plain reading of Order XXII Rule 4 of the Code it clearly transpires that this provision applies only where the death of one of the sever
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.
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.
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 ....
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....
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.
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