The Hon’ble Smt. Justice Renuka Yara Civil Revision Petition Nos.1510 of 2024 and 1290 of 2025

Order:

The present Civil Revision Petitions are directed against the common order dated 26.03.2024 passed by the learned Principal District and Sessions Judge, Kamareddy in I.A.Nos.387 of 2021 and 434 of 2023, both in I.A.No.910 of

2011 in O.S.No.10 of 2009.

2. Heard Sri B. Paropkari, learned counsel for the petitioners/defendant Nos.3, 6 and 7 and Sri R. Ramabrahmma, learned counsel for the respondent No.1/plaintiff.

3. The above Interlocutory applications i.e. I.A.Nos.387 of 2021 and 434 of 2023 were filed to bring the legal representatives of the deceased defendant No.2 on record and to set aside the abatement order. While filing the said petitions though there was delay of nine (9) years, a petition to condone delay was not filed under Section 5 of Limitation Act. The above interlocutory applications were allowed bringing the legal representatives on record and setting aside the abatement order. Aggrieved by the same, the present Civil Revision Petitions are preferred.

4. It is argued by the learned counsel for the petitioners that the I.As to set aside the abatement order and bring the legal representatives are not maintainable when a petition to condone delay is not filed. It is argued that there is callous negligence in filing the applications with a delay of nine (9) years without assigning any reasons when the deceased No.2 is family member and knowledge of his death is known to the respondent No.1/plaintiff.

5. In that regard, the learned counsel for respondent No.1 argued that even in case, one of the defendants in a suit for partition dies and legal representatives are not brought on record, the cause of action in the suit survives against the remaining defendants and the share that is due to be allotted to the legal representatives of the deceased defendant can be allotted irrespective of their presence on record.

6. About the survival of cause of action in a suit for partition, the learned counsel for respondent No.1 relied upon the judgment of the Hon’ble Supreme Court of India between Bhurey Khan v. Yaseen Khan (dead) by LRs and others, 1995 Supp (3) SCC 331, wherein, it is held as follows:

“4. We have heard the learned counsel for the parties. After the order dismissing the appeal for non- prosecution was set aside by this court the parties were relegated to the position as it stood earlier, namely, that the substitution application filed by the appellant for bringing on record the legal representatives to whom the notices were issued stood dismissed. But that could not furnish valid ground for abating the appeal as the six sons of Yaseen were already on record. The estate of the deceased was thus sufficiently represented. If the

appellant would not have filed any application to bring on record the daughters and the widow of the deceased the appeal would not have abated under Order 22 Rule 4 of the Code of Civil Procedure as held by this court in Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 The position, in our opinion, would not be worse where an application was made for bringing on record other legal representatives but that was dismissed for one or the other reason. Since the estate of the deceased was represented the appeal could not have been abated.”

7. Learned counsel for respondent No.1 conceded that while filing petitions to bring the legal representatives on record and set aside abatement, a petition has to be filed under Section 5 of Limitation Act to condone delay. However, it is also conceded by the learned counsel for the petitioners that the cause of action survives against the remaining defendants in the suit for partition.

8. Since the petitions to set aside the abatement order and to bring the legal representatives on record cannot be filed

without filing a petition to condone delay, the impugned orders are not sustainable and liable to be set aside.

9. In the result, the Civil Revision Petitions are allowed s