An application under Order 22 Rule 4 of the Code of Civil Procedure is maintainable only if a party dies during the pendency of a suit; if the party died before the institution, the court may invoke Order 1 Rule 10 to substitute the legal representatives.

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO THAT BY WAY OF WRIT OF CERTIORARI THIS HON’BLE COURT BE PLEASED TO QUASH THE ORDER DATED 29.01.2019 PASSED ON I.A. NO.38 FILED UNDER ORDER 22 RULE 4(3) R/W SECTION 151 CPC IN O.S. NO.107/2012 ON THE FILE OF LEARNED PRL. SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR VIDE ANNEXURE-N IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,.

THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

1. The petitioners have filed this writ petition challenging the order on I.A. No. 38 dated 29.02.2019 passed in O.S. No. 107 of 2012 by the learned Principal Senior Civil Judge and JMFC, Ranebennur.

2. Brief facts, leading rise to the filing of this writ petition are as follows:

3. The respondent No. 1 to 4 filed a suit in O.S. No. 107 of 2012 seeking the relief of declaration and consequential relief of perpetual injunction. The respondents No. 5 to 7 filed their separate written statements raising several grounds. Further, the defendant No. 10 in the aforesaid suit breathed his last on 03.09.2010 which became evident when the suit summons was returned with an endorsement that the defendant No. 10 is dead.

4. The respondents No. 1 to 4 filed an application in I.A. No. 36 under order 22 Rule 4 R/w section 151 of the CPC to bring the legal representatives of the deceased defendant No. 10. They also filed an application in I.A. No. 37 under section 5 of the limitation Act, seeking to condone the delay in bringing the LRs of defendant No. 10. Further, they also filed an application in I.A. No 38 seeking to set aside the abatement of suit against the defendant No. 10.

5. The trial court after hearing the parties, passed the impugned orders allowing the aforesaid application. Hence, this petition.

6. Heard the arguments of the learned counsel for the petitioners and the learned counsel for the respondents.

7. Learned counsel for the petitioners submits that as per the plaint averments the cause of action arose on 07.07.2012 whereas the death of the deceased defendant No. 10 occurred on 03.09.2010 and the application is filed on 02.01.2019 i.e., after the lapse of 7 years from the institution of the suit. He submits that the trial court has not made any observation regarding the limitation while passing the orders for bringing LRs of defendant No. 10 on record. Accordingly, on these grounds, he prays to allow the petition.

8. Per contra, the learned counsel for the respondents submits that the impugned order passed by the trial court is well reasoned and the same warrants no interreference at the hands of this court. The trial court was justified in passing the impugned order. Accordingly, on these grounds, prays to dismiss the petition.

9. Perused the records and considered the submissions of the learned counsel for the parties.

10. The undisputed facts are that respondent No. 1 to 4 filed a suit in O.S. No. 107 of 2012 seeking the relief of declaration and consequential relief of perpetual injunction. Defendant No. 10 in the aforesaid suit breathed his last on 03.09.2010 i.e., before institution of the suit. Further, the respondents No. 1 to 4 filed an applications in I.A. No. 36 to 38 to bring the LRs of deceased defendant No. 10, to condone the delay in bringing the LRs of deceased defendant No. 10 on record and to set aside the abatement of the suit against the defendant No. 10. The trial court allowed the said applications, by passing the impugned order.

11. Admittedly, the petitioners herein are the legal representatives of the d