DODDAPPA MARITAMMAPPA Vs. ERAPPA MUDAKAPPA

JUDGEMENT

(1.) At the stage of admission, the respondents are notified. Accordingly, the 1st respondent has put in appearance through a counsel. Hence the matter is heard on merits.

(2.) This civil revision petition is directed against the order dated 4-2-1981 passed on I.As. 4, 5 and 6 by the learned 2nd Additional Munsiff, Hubli, in OS No. 25 of 1976 allowing the applications. I.A. No. 4 is an application filed by the plaintiff under order 22 Rule 4 of CPC (hereinafter retired to as 'the Code'), to bring the legal representatives of the deceased 1st defendant on record. LA. No. 5 is an application under sec. 5 of the Limitation Act for condonation, of delay in filing the L.R. application. I. A. 6 is an application under order 22 Rule 9 of the Code, for setting aside the abatement. As per Ext.-D, an extract from the death register, the first defendant died on 18-11-1977. The aforesaid application came to be filed on 3-7-1980. A memo about the death of the 1st defendant was filed by the counsel representing the 1st defendant on 26-6-1980. The parties have adduced evidence on these applications.

(3.) The learned trial Judge was of the view that as the memo under order 22 Rule 10A of the Code, was filed by the counsel for the first der fendant, on 26-6-1980; that the counsel for the 1st defendant himself was not aware of the death, of the 1st defendant; that it was the duty of the counsel appearing for the deceased 1st defendant to intimate the Court about the death of the 1st defendant. Accordingly, it has been held by the trial court that under these circumstances, the defendants cannot be permitted to resist the applications having regard to the provisions contained in order 22 Rule 10A of the Code and it! has accordingly allowed the applications.