At this juncture, this Court worth recall the decisions in Morasa Anjaiah v. Kondragunte Venkateswarlu and other, MANU/AP/0030/1993 : AIR 1993 AP 156 wherein it is held hereunder:
a partition suit does not abate even if legal representatives are not brought on record.{Para14}
On a careful consideration of the contention advanced on behalf of the Revision Petitioners and also in the light of an established facts that a partition suit does not abate even a legal representatives are not brought on record this Court comes to an inevitable conclusion that the view taken by the trial Court to the effect that I.A. No. 238 of 2000 filed by the Revision Petitioners his hit by a limitation is not quite tune that the principle of law and as such this Court per-forced to interfere with the orders passed by the trial Court and accordingly allows the present Civil Revision Petition in the interest of justice leaving the parties to bear their own costs. {Para 17}
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
C.R.P. (NPD)(MD) No. 2698 of 2001
Decided On: 25.01.2011
Mariyammal and Ors. Vs. S. Mariyappan and Ors.
Hon'ble Judges/Coram:
M. Venugopal, J.
Citation: MANU/TN/0551/2011
1. The Revision Petitioners/Proposed Plaintiffs 1 to 4 have filed the present Civil Revision Petition as against the order dated 20.02.2001, in I.A. No. 238 of 2000 in O.S. No. 330 of 1992 passed by the learned District Munsif, Sattur, praying permission of the trial Court to impaled the Defendants 1 to 5 as Legal Representatives of the deceased First Defendant and the Defendants 6 and 7 as Legal Representatives of the deceased Fourth Defendant as per Order 22 Rule 4 and Section 151 of Code of Civil Procedure.
2. The trial Court viz., learned District Munsif, Sattur, while passing orders in I.A. No. 238 of 2000 in O.S. No. 330 of 1992 on 20.02.2001 has among other things observed that the I.A. No. 238 of 2000 is hit by limitation because of the fact the doctrine of abatement will apply to the I.A. No. 238 of 2000 and resultantly dismissed the application without costs.
3. The learned Counsel for the Revision Petitioners urges before this Court that the order of the trial Court in I.A. No. 238 of 2000 in O.S. No. 330 of 1992 dated 20.02.2001, is contrary to law and further the doctrine of abatement will not apply to the present case on hand, but this aspect of the matter has not been looked into by the trial Court in real and proper perspective which has resulted in a wrong order has been passed against the Revision Petitioners/ Proposed Plaintiffs.
4. According to the learned Counsel for the Revision Petitioners/Proposed Plaintiffs as per the decision in Pooranchand and Ors. v. Shriram and Ors. reported in AIR 1963 Rajasthan 245 the ingredients of Order 22 Rules 3 and 4 of Code of Civil Procedure will not apply the case of death after passing of the preliminary decree and indeed there is no limitation for filing of an application for passing of final decree in suit.
5. Also, it is the submission of the learned Counsel appearing for the Revision Petitioners that the trial Court ought to have allowed the I.A. No. 238 of 2000 as per Order 22 Rule 10 even though the Petitioner has filed the present petition under Order 22 Rule 4 of Code of Civil Procedure.
6. In the counter filed by the Tenth Respondent before the trial Court to I.A. No. 238 of 2000 it is pleaded that the I.A. No. 238 of 2000 filed by the Petitioner to set aside the abatement is barred by limitation and also the Petitioners have not spelt out the date of death of Fourth Defendant in I.A. No. 238 of 2000 which is a material factor. Added further, the Revision Petitioners have failed to bring on record the other legal heirs of the deceased party of the suit.
7. In short, it is the contention of the learned Counsel for the Revision Petitioners that Order 22 Rule 3 and Rule 4 of Code of Civil Procedure will not apply to the cases of death after the passing of preliminary decree as per the decision in Pooranchand and Ors. v. Shriram and Ors. reported in AIR 1963 Rajasthan 245
8. The submission of the learned Counsel for the Revision Petitioners is that the trial Court has not appreciated the correct legal position as per Order 22 Rule 3 of Code of Civil Procedure which deals with "Procedure in case of death of one of several Plaintiffs or of sole Plaintiff" and this has resulted in serious miscarriage of justice and therefore prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.
9. In the counter in I.A. No. 238 of 2000 filed by the Eighth Respondent (in Civil Revision Petition and Tenth Respondent in I.A. No. 238 of 2000 and adopted by the Respondents 6 to 9 therein). It is inter alias averred that the I.A. No. 238 of 2000 filed by the Proposed Revision Petitioners/Proposed Plaintiffs 1 to 4 is hit by limitation and that the Revision Petitioners have failed to impaled the other legal heirs of the deceased and as such I.A. No. 238 of 2000 has to be dismissed.
10. It is not in dispute that the sole Plaintiff(since deceased) has expired on 24.11.1993.
11. In support of the contention that for a death of Plaintiff after passing of preliminary decree the ingredients of Order 22 Rule 3 of Code of Civil Procedure do not apply, the learned Counsel for the Revision Petitioners relies on the decision Pooranchand and Ors. v. Shriram and Ors. reported in AIR 1963 Rajasthan 245 wherein it is laid down as follows:
O.22 R.3 does not apply to cases of death of the Plaintiff after the preliminary decree. After the preliminary decree the right to sue does not survive and there can be no abatement of the suit in such a case. MANU/UP/0174/1930 : AIR 1930 All 779 and AIR 1931 All 490(FB),Dissented from; AIR 1928 Mad 914(FB)and AIR 19409 Bom 318 and AIR 1942 Pat 340 and MANU/BH/0060/1945 : AIR 1945 Pat 380 and AIR 1947 Nag 75 and 75 and AIR 1952 Cal 579, Rel. on
He also seeks in aid of the decision of the Honorable Supreme Court in Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Ors. reported in MANU/SC/1607/2009 : 2009 9 SCC 689 at page 690 whereby and where under it is observed thus:
Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree.
There is a fundamental difference between mortgage suits and partition suits. A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount. When the amount is not paid the Plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit endures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits.
12. The learned Counsel for the Revision Petitioners invites the attention of this Court the decision of the Ramasamy Reddiar and Ors. v. Ponnusamy Reddiar reported in (2008) 1 MLJ 413 wherein it is held that there is no limitation for filing final decree application in law.
13. Yet another decision of this Court is relied on the side of the Petitioners in Varadappa Gounder and Ors. v. Karuppa Goundar reported in 1994 MLJ 370 wherein it is held that as follows:
A Full Bench of this Court has held in Perumal Pillai v. Perumal Chetty, 55 M.L.J 253 that O.22, Rules 3 and 4, Code of Civil Procedure do not apply to cases where a preliminary decree was passed and before the passing of the final decree, the Plaintiff died and a petition was filed for getting impleaded as the legal representative of the deceased Plaintiff. The ruling squarely applies to the facts of this case.
14. At this juncture, this Court worth recall the decisions in Morasa Anjaiah v. Kondragunte Venkateswarlu and other, MANU/AP/0030/1993 : AIR 1993 AP 156 wherein it is held hereunder:
a partition suit does not abate even if legal representatives are not brought on record.
15. It is useful to refer to Order 22 Rule 4 of Code of Civil Procedure which speaks of the Procedure in case of death of one or several Defendants or of sole Defendant, and the same runs as follows:
4. Procedure in case of death of one of several Defendants or of sole Defendant.-
(1)Where one of two more Defendants dies and the right to use does not survive against the surviving Defendant or Defendants alone, or a sole Defendant or sole surviving Defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased Defendant to be made a party and shall proceed with the suit.
(2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased Defendant.
(3)Where within the time limited by law no application is made under Sub-rule (1)the suit shall abate as against the deceased Defendant.
(4)The Court whenever it thinks fit, may exempt the Plaintiff from the necessity of substituting the legal representatives of any such Defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said Defendant notwithstanding the death of such Defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5)Where
(a)the Plaintiff was ignorant of the death of a Defendant, and could not, for that reason, make an application for the substitution of the legal representative of the Defendant under this rule within the period specified in the Limitation Act, 1963(36 of 1963) and the suit has, in consequence, abated, and (b)the Plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance if proved.
HIGH COURT AMENDMENT(MADRAS):(i)At the end Sub-rule (3) add the words 'except as hereinafter provided".
(ii)insert the following as Sub-rule (4):
(4)The Court whenever it sees fit, may exempt the Plaintiff from the necessity to substitute the legal representative of any such Defendant who has been declared ex-prate or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the judgment may in such case be pronounced against the said Defendant notwithstanding the death of such Defendant, and shall have the same force and effect as if it has been pronounced before death took place.
In the new Sub-rule (4)inserted by the Amendment Act, 1976 the amendment made by the Madras High Court has been incorporated.
16. That apart as far as Order 22 Rules 3 and 4 of Code of Civil Procedure are concerned it is to be pertinently pointed out by this Court as per the ingredients of the aforesaid rules an automatic abated is also provided, however, Rule 10 of Order 22 of Code of Civil Procedure does not have any such procedure. If an party who is acquired the interest by means of devolution gets a right to prosecute the suit, the suit is in his hands and the said suit is not in use suit under Rules 3 and 4 there is an automatic abatement but as per Rule 10 of Order 22 the legislature has not enunciated any such procedure in the event of failure to apply for leave of Court to continue the prosecution of a case by or against a person upon whom the interest has deviated as per the decision in Dhurandhar Prasad Singh v. Jai Prakash University reported in MANU/SC/0381/2001 : AIR 2001 SC 2552.
17. On a careful consideration of the contention advanced on behalf of the Revision Petitioners and also in the light of an established facts that a partition suit does not abate even a legal representatives are not brought on record this Court comes to an inevitable conclusion that the view taken by the trial Court to the effect that I.A. No. 238 of 2000 filed by the Revision Petitioners his hit by a limitation is not quite tune that the principle of law and as such this Court per-forced to interfere with the orders passed by the trial Court and accordingly allows the present Civil Revision Petition in the interest of justice leaving the parties to bear their own costs.
18. In the result the Civil Revision Petition is allowed, leaving the parties to bear their own costs and consequently the order passed in I.A. No. 238 of 2000 in O.S. No. 330 of 1992 by the trial Court is set aside for the reasons assigned by this Court.
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