Andhra HC (Pre-Telangana)
Valluri Sambasiva Rao And Anr. vs Motamarri Veeraiah Gupta (Died) By Lrs. on 24 March, 2003
Equivalent citations: 2003(3)ALD585, 2003(3)ALT100
ORDER D.S.R. Varma, J.
1. This revision petition is filed challenging the order and decree dated 11.9.2002 passed by the Court of Senior Civil Judge, Chirala in I.A. No. 103/2002 in O.S.No. 7/1997.
2. By the impugned order, the Court below allowed the I.A. filed by the legal representatives of the deceased plaintiff under Order 1, Rule 10 and Order 6, Rule 17 C.P.C. and thereby permitted them to come on record as plaintiffs 2 to 7 and also to carry out the consequential amendment.
3. For convenience, the parties shall be referred to as plaintiffs and the defendants.
4. The brief facts are that the deceased plaintiff No. 1 filed the suit for recovery of money on the strength of a registered mortgage deed. The Court below passed the preliminary decree on 2.3.2001. Subsequently, the plaintiff died. Thereafter, the legal representatives of the 1st plaintiff filed I.A. No. 102/2001 for passing of the final decree. After the death of the plaintiff, since his legal representatives were not brought on record formally, they again filed the present application i.e., I.A. No. 103/2001 for their impleadment and consequential amendment. The Court below by the impugned order allowed the said I.A. Aggrieved by this order, the defendants in the suit filed this revision petition.
5. The learned Counsel for the revision petitioners -defendants contended that in the affidavit filed in support of the petition for the impleadment of the legal representatives of the deceased plaintiff, no particulars as regards the date of death were furnished. He further contended that the L.R. petition was not filed within 90 days of the death of the 1st plaintiff and hence the suit has to be abated and they cannot be permitted to come on record. He finally contended that in order to avoid a petition to set aside abatement and to condone the delay, the present I.A. has been filed under Order 1, Rule 10 CPC and the same is not maintainable and in fact a petition under Order 22, Rule 10 CPC has to be filed. He stated that the Court below without giving any reasons, allowed the present I.A. With these contentions, he sought for setting aside of the impugned order.
6. On the other hand the learned Counsel for the respondents - plaintiffs contended that the Court below had rightly allowed the legal representatives to come on record. He submitted that an application under Order 1, Rule 10 CPC is maintainable. He also submitted that even otherwise, after passing of a preliminary decree a suit cannot be dismissed, except in appeal or in a revision. With these submissions, he sought for dismissal of the revision petition.
7. In support of their respective contentions, both the Counsel relied on some judgments and they will be referred in the course of the judgment.
8. In view of the above contentions, the following points would fall for my consideration:
After passing of the preliminary decree, if the plaintiff dies, to enable the Court to pass a final decree, whether the plaintiffs can be permitted to come on record either under Order 1, Rule 10 CPC or under Order 22, Rule 10 CPC ?
2. Whether the limitation of 90 days prescribed under Article 120 of the Limitation Act, 1963 would apply to the present situation?
9. Issues 1 and 2:- Now it is necessary to look into the relevant provisions of CPC for better appreciation.
10. Order 1 Rule 10 of CPC deals with suit in the name of wrong plaintiff. Sub-rules (1) and 2 of Rule 10 are relevant and they are extracted as under:
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3)....
(4).....
(5)....
11. From a reading of the above sub-rules, it is clear that, in order to settle all the issues and to have a comprehensive and effective adjudication of the matter, Court has the power to order striking out the name of the wrong plaintiff, if it is by a bona fide mistake and direct the addition or substitution of a party whose presence is necessary to decide the real dispute. Further, if the Court is of the opinion that any party, either as plaintiff or defendant has been improperly joined, then either on an application or on its own, direct the striking out the name of such party and also has the power to direct to add or implead the necessary party. From a reading of the entire rule, it is clear that the main stress is with regard to effective and complete adjudication all the issues and in that process, if there is any mis-joinder or non-joinder of necessary parties, the Court is vested with the powers, as described above.
12. But the above rule does not directly deal with the present situation i.e., where the plaintiff dies after the passing of a preliminary decree and before passing of a final decree.
13. Though Order 22 Rule 3 of CPC deal with the situation where the plaintiff dies during the pendency of the suit and the right to claim relief survives, in number of judgments, the application of this rule, to the present contingency is ruled out. The impact of Sub-rule (1) of Rule 3 indicates that if the sole plaintiff dies and right to seek relief survives, the legal representatives can be permitted to come on record, if an application is made in that behalf. Further Sub-rule (2) of Rule 3 contemplates that if no such application to come on record as legal representatives is made with in the period prescribed under law i.e., within 90 days as stipulated under Article 120 of the Limitation Act, the suit shall abate and on an application by the defendant, the Court may award costs incurred by the defendant and the said costs are recoverable from the estate of the deceased plaintiff.
14. Since after passing of the preliminary decree, the rights of the plaintiff stands determined and recognized, and even if he dies, if no application by the legal representatives to come on record, is made, this Court held in the judgments to be referred hereinafter, that there is no question of any abatement. It was held that since no final decree can be passed against a dead person, it is necessary to permit the legal representatives to come on record. Therefore, the contemplation under Sub-rule (2) of Rule 3 of Order 22, with regard to abatement, if no LR petition is filed within limitation, was negatived by this Court, in the contingency of the present nature.
15. Further on a careful reading of Rule 3 of Order 22, it is clear that it does not deal with the situation of the present nature, where the plaintiff dies after preliminary decree and before passing of the final decree. Therefore, this rule cannot strictly be made applicable to the facts of this case, even though a bare reading tempts to apply this rule, on the ground of surviving cause of action.
16. But from the present situation, another thing that is to be conspicuously noticed is that after the death of the plaintiff, his interest devolved on his legal heirs and there is no dispute in this regard. Under Order 22, Rule 10, the code has prescribed the procedure in case of creation or devolution of interest during the pendency of the suit and before passing of the final order. The said Rule of Order 22 is extracted as under for ready reference:
10. Procedure in case of assignment before final order in suit:--(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).
17. As per Rule 10, if there is any creation or devolution of interest on a person during the pendency of the suit and before passing of final order, such person can continue the suit with the permission. In other words as per Sub-rule (1) of Rule 10, two things are important in order to continue the suit by a person i.e., (1) devolution of interest and (2) permission of the Court. As per Sub-rule (2) of Rule 10, even the attachment of a decree pending an appeal therefrom, shall be deemed to be an interest devolved and the person entitled to such interest, can avail benefit under Sub-rule (1) of Rule 10.
18. In the instant case, the plaintiff has died after passing of the preliminary decree. So it is clear that the interest of the plaintiff has devolved on his legal representatives. Hence as per Rule 10 of Order 22 CPC, they are entitled to continue the suit with the permission of the Court. Therefore, in my considered view a petition under Order 22, Rule 10 would be appropriate. Further, as stated above, in passing the preliminary decree, the rights of the plaintiff stands recognised. Therefore, when the rights are recognized by the Court, there cannot be any question of abatement.
19. My view is strengthened with the decision of this Court in S. Mohan Reddy v. P.Chinnaswamy, , wherein a learned Single Judge of this Court observed at paragraph Nos. 6 and 7 as under:
"6. As I already observed, a suit cannot be dismissed except on appeal or by revision after a preliminary decree is passed. It follows that there cannot be abatement of the suit even if the LRs. of the deceased party are not brought on record during the final decree proceedings. But, even a final decree cannot be passed for or against a dead person. So it is necessary to bring on record the L.Rs. of the deceased before a final decree is passed. It has to be seen as to what provision is applicable when Order 22, Rules 1, 3 and 4 are not applicable in case of death of parties during the final decree proceedings.
7. Order 22, Rule 10 CPC lays down that in cases of an assignment, creation or devolution of any interest other than the cases referred to in remaining rules of Order 22, the suit may by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. When Order 22, Rule 3 or 4 is not applicable in cases of death during the final decree proceedings, one has to invoke Order 22, Rule 10 CPC to bring the LRs. on record. Ramsewak v. Mt. Deorathi , lends support to the said proposition."
20. Further another learned Single Judge of this Court in T. Mangaraju v. K. Ganamma, 1979 (1) APLJ 54 (NRC), held as under:
"Once preliminary decree is passed it cannot be said that the cause of action dies along with the person nor does it require that the LRs. should claim the cause of action by being brought on record within the period of limitation prescribed. In other words on account of the passing of the preliminary decree the right stands recognised by the Court. All that is required is that the final decree proceedings should be taken up at the instance of the party claiming and in that view there is no question of any abatement nor does it require that the abatement be set aside. The provision of Order 22 Rule 3 and 4 does not apply to a case where the holders dies after passing a preliminary decree."
21. However, another learned Single Judge of this Court in Kedarisetti Suryanarayana v. Kedarisetti Venkataraju, , held that in case of death of a party after passing of preliminary decree, an application under Order 22, Rule 3 CPC need not be filed, but an application under Order 1, Rule 10 CPC is maintainable. But while coming to the above conclusion, it was noted at paragraph No. 4 of the judgment as under:
"The Full Bench also considered the case reported in Chapman v. Day, (1883) 48 L.T. 907, which is cited before the Full Bench for the view that in a case where a preliminary decree had already been passed, the right of action had already been determined before the death of the defendant and as such, the subsequent death of the defendant does not have any effect on the preliminary decree in which the rights of the parties are already determined. The view expressed by the Full Bench in Perumal Pillai v. Perumal Chetty, AIR 1928 Mad. 914, has been uniformly followed without any demur."
22. From a reading of the above decisions of this Court, it is clear that by passing of preliminary decree, the rights of the parties stand recognized and determined by the Court and the only thing that is left is passing of the final decree. Therefore after passing of a preliminary decree if the plaintiff dies, since no final decree can be passed on a dead person, it is essential to permit his legal representatives to come on record. Hence, after such determination and recognition of rights, if the plaintiff dies, there is no question of any abatement and the suit cannot be dismissed on the ground of abatement, after passing of a preliminary decree, except in an appeal or in a revision.
23. Even though there appears to be a divergence of opinion in the judgments in S. Mohan Reddy 's and Kedarisetthi Suryanarayana's cases cited (supra), as regards the filing of a petition by the legal representatives of the deceased party after passing of a preliminary decree, as to whether under Order 1, Rule 10 or under Order 22, Rule 10 CPC, there is consensus to the extent that after passing of a preliminary decree, the right stands recognised and no abatement will occasion and only since no decree can be passed against a dead person, it is necessary to file an LR petition.
24. Hence, without expressing any opinion regarding the finding of the learned Single Judge in Kedarisetti Suryanarayana's case (supra) 1 am of the view that an application under Order 22, Rule 10 would be appropriate. Further since mere mentioning of wrong provision does not vitiate the proceedings, I hold that the order of the Court below in allowing the LR petition and the consequent amendment under Order 6, Rule 17 read with Section 151 CPC, to enable the Court to pass a final decree, is just and proper.
25. However having regard to the judgments of this Court in S. Mohan Reddy's and T. Mangaraju's cases cited (supra) and under the given facts and circumstances, I hold that the impleadment of the respondents herein as legal representatives of the deceased plaintiff, in the final decree proceedings is imperative in view of the fact that substantial interest had developed upon the legal representatives.
26. Accordingly both the issues are answered in favour of the plaintiffs.
27. For the foregoing reasons, I do not find any merit in the revision petition and the same is accordingly dismissed. No costs.