RATNA Vs. GUNDAIAH

JUDGEMENT

(1.) This appeal under Order 43 Rule 1(k) of CPC is filed by the appellant-defendant No.2 challenging the order dtd. 4/9/2020 passed by the Additional Senior Civil Judge, Tumakuru in R.A.Misc.No.39/2016 filed under Order 22 Rule 9(2) of CPC, whereby the First Appellate Court has dismissed R.A.Misc.No.39/2016.

(2.) For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

(3.) The plaintiff filed the suit i.e., O.S.No.8/2002 seeking relief of partition and separate possession. The said suit came to be decreed by judgment and decree dtd. 28/3/2008. Being aggrieved by the same, defendant No.2 filed R.A.No.42/2009 under Sec. 96 of CPC before the First Appellate Court. During the pendency of R.A.No.42/2009, the plaintiff and defendant No.1, who are respondent Nos.1 and 2 before the First Appellate Court, died. Since no steps were taken to bring the legal representatives of deceased plaintiff and defendant No.1 on record within the stipulated time, R.A.No.42/2009 came to be dismissed as abated on 23/7/2016. Hence, the defendant No.2 filed R.A.Mis.No.39/2016 under Sec. 22 Rule 9(2) of CPC. Along with the said petition, two separate applications were filed under Order 22 Rule 4 of CPC to bring the legal representatives of plaintiff and defendant No.1 on record. There was delay in filing the legal representatives applications. However, the applications under Order 22 Rule 4 of CPC for bringing the legal representatives were filed without filing the applications under Sec. 5 of the Limitation Act to condone the delay in filing the legal representatives applications. Therefore, the First Appellate Court by impugned order dtd. 4/9/2020 dismissed R.A.Misc.39/2016 and applications filed under Order 22 Rule 4 of CPC were rejected. Being aggrieved by the same, the defendant No.2 is before this Court.