Madras High Court
State Trading Corporation Of India Ltd. vs K.V. Vaidyalingam And Ors. on 16 December, 1977
Equivalent citations: AIR1978MAD294, (1978)1MLJ345, AIR 1978 MADRAS 294, 1978 HINDULR 316, 1991 MADLW 184, (1978) 1 MADLJ345
JUDGMENT Ismail, J.
1. The petitioner who was the plaintiff in O. S. No. 720 of 1975, on the file of the learned First Additional Subordinate Judge, Coimbatore, instituted the suit against five defendants, and the fourth defendant was dead even on the date when the suit was instituted. Subsequently, the petitioner filed I. A. No. 736 of 1976 under Order XXII Rule 4 and S. 151, C. P. C. to implead the legal representatives of the said fourth defendant. On that application being opposed, the trial court dismissed the same. It is against the dismissal of the said application, the present civil revision petition has been filed.
2. The suit was filed on 8-11-1075 while the fourth defendant had died even on 19-8-1975. Consequently, the suit was filed against a dead person as far as the fourth defendant was concerned. A suit against a dead person is admittedly a nullity. There fore, as far as the fourth defendant was concerned, it was as if no suit whatever had been filed. If so, Order XXII, Rule 4, C. P. C. cannot be invoked for the purpose of impleading the legal representatives of the fourth defendant as parties to the suit.
3. The learned counsel for the petitioner, relying on the decision of this court in K. Ismail v. Pavu Amma , contends that these persons could be impleaded under Order 1, Rule 10, C. P. C. But that was not the claim of the petitioner herein. It is one thing to file an application to implead certain persons as parties to a suit in the place of a deceased party under Order XXII, Rule 4, C. P. C. and it is entirely another thing to file an application under Order I. Rule 10 to implead a new party, because the rights of the parties will not be the same. When a legal representative is brought on record under Order XXII, Rule 4, C. P. C., his status and rights will be the same as that of the person who died in whose place he has come on record, while the rights and obligations of a person impleaded as a party under Order I, Rule 10 C. P. C. will not be so circumscribed, but will be different and independent. Therefore, I am unable to accept the contention of the learned counsel for the petitioner that the proposed parties could be impleaded under Order I, Rule 10 C. P. C. and the suit itself must be deemed to have been instituted against them. Hence the civil revision petition fails and the same is dismissed.