High Court
Case Details
MC 2299/2011 BEFORE HON’BLE MR JUSTICE B. P. KATAKEY
Legal Reasoning
Heard Mr. H. Deka, learned Senior counsel for the petitioners and Mr. S. P. Roy, learned Senior counsel appearing for the respondents. The applicant, by the present application is seeking addition of the leg al heirs of the petitioner No.7, who died on 26.11.2005, the legal heirs of resp ondent No.1, who died on 24.02.2011 and the legal heirs of the respondent No.8 w ho died in the month of October, 2004, in MC No. 2843/2008. It has been contended by Mr. Deka, learned Senior Counsel for the applic ant that since the petitioner No.7 as well as respondent Nos. 1 and 8 expired af ter the pronouncement of judgment, in Second Appeal No.80 of 1986, on 18th of Ma y, 1995, there is no question of abatement as against the said petitioner as wel l as the respondents, in view of the provisions contained in Order 22 Rule 6 CPC . Hence, there is no need to file an application for bringing their legal heirs on record, neither the suit nor appeal having been pending. According to the lea rned counsel, the application for addition of parties has been filed to bring th e legal heirs on record. In support of his contention learned Senior counsel ha s placed reliance on the judgment of Apex Court in State of Kerala vs. Tridevi a nd others, reported in (2006) 9 SCC 2006. Mr. S. P. Roy, learned counsel appearing for the respondents, on the oth er hand, has submitted that since the petitioner No.7, respondent Nos. 1 and 8 i n MC No. 2843/2008, expired on 26.11.2005, 24.02.2011 and in October 2004, respe ctively, and they being parties of the suit as well as in the subsequent appeals , the application for substitution of the legal heirs has to be filed, if necess ary, with the prayer for condonation of delay and for setting aside the abatemen t. An application for adding the legal heirs as parties, is, therefore, not main tainable. The learned counsel in support of his contention has placed reliance o n the decision of the Apex Court in AIR 1964 Supreme Court 2005 Union of India ( UOI) vs. Ram Charan and Ors; AIR 2001 Supreme Court 2552 Durandhar Prasad Singh vs. Jai Prakash University and others: AIR 2005 Supreme Court 2209 Amit Kr. Shaw and Anr. appellants vs. Farida Khatoon and Anr. and AIR 2008 Supreme Court 120 2 Hari Prasad Bhuyan vs. Durga Prasad Bhuyan and ors. The applicant along with others filed a suit being Title Suit No.7/1981, which was dismissed by the appellate Court on 70.01.1984. Title Appeal No.5 of 1984 preferred by the appellant was also dismissed by the First Appellate Court on 30.01.1986, Second Appeal No. 80/1986 was, thereafter, filed. After disposal of the Second Appeal by this court, there are certain disputes relating to the d rawing up of the decree pursuant to the judgment passed by this court in Second Appeal No. 80/1986, which gave rise to filing of MC No. 50 of 2003. During pende ncy of the said miscellaneous case, Miscellaneous case Nos. 1012/03, 1013/03, 10 14/03, 1015/03, 1016/03 and 1017/2003 were filed for bringing the legal heirs of certain opposite parties on record. The said miscellaneous cases were decided b y a Single Bench of this Court vide order dated 06.10.2005 rejecting all the mis cellaneous cases and by holding that the judgment and order dated 18.05.1995 in Second Appeal No.80/1986 is nullity because of the failure to substitute the leg al heirs of respondent No.7. Thereafter the said order was carried to the Apex C ourt in Civil Appeal No. 7868/2008, which was allowed vide order dated 29.01.200 8, by setting aside the said order passed by a Single Bench of this Court and al lowing the parties to file application under Section 152 CPC seeking correction of the decree passed in Second Appeal No. 80/1986. An application, thereafter, h as been filed by the petitioners, which was registered and numbered as MC No. 28 43/2008, wherein the present application has been filed for addition of the part ies, namely, the legal heirs of the petitioner No.7 as well as respondent Nos. 1 and 8 thereof. Admittedly, the petitioner No.7 and respondent Nos. 1 and 8 died after disposal of the aforesaid second appeal being Second Appeal No. 80/1986, vide judgment and order dated 18.05.1995. Order 22 Rule 6 CPC provides that notwithstanding anything contained in the fore going Rules, whether the cause of action survives of not, there shall be no abat ement by reason of death of either parties between conclusion of the hearing and pronouncement of the judgment, but the judgment may in such case be pronounced notwithstanding the death and shall have the same forces and effect as if it had been pronounced before the death took place. Hence, after delivering of the jud gment in the second appeal, there is no question of abatement due to the death o f either the petitioner No.7 or respondents Nos. 1 and 8, who, admittedly, died after disposal of the said appeal. The decision cited by the learned counsel appearing for the respondents relate to the requirement of filing the application under Order 22 for substitut ion of the legal heirs of any of the parties in pending suit or the appeal. Henc e, not applicable in the case in hand, therefore, not discussed. The Apex Court in the Tridevi (Supra) has held that after disposal of the appeal, the recourse open for bringing legal heirs of a deceased party on record is Order 1 Rule 10 C PC. In the instant case, as held above, there is no abatement by reason of death of the petitioner No.7 or respondent Nos. 1 and 8, as they died after pronouncement of the judgment in the aforesaid Second Appeal. The present application has bee n filed for adding the legal heirs of the petitioner No.7 as well as respondent Nos. 1 and 8 for which no period of limitation has been prescribed. That being the position of the prayer made in the application is allowed . The Registry is directed to correct the cause title in MC No. 2843/2008.