STATE BANK OF INDIA Vs. PADMAVATHAMMA

JUDGEMENT

(1.) This is a plaintiff's revision against the order dated 28-5-1986 passed by the 7th Additional City Civil Judge, Bangalore City in O.S. 2795/86 dismissing I.A. 1 filed under Order 23, Rule 1(3) C. P. C.

(2.) The respondent, who was the defendant in the Court below, had died before the institution of the suit in the lower Court itself. Therefore, the question of serving notice on her does not arise. It is undisputed that the defendant against whom the suit has been filed, had died prior to the institution of the suit itself. The plaintiff realised the same after the institution of the suit. Hence, he filed the Petition under Order 23, Rule 1(3) C.P.C seeking permission to withdraw from the suit with liberty to file a fresh suit on the same cause of action. The Trial Court thought that the death of a party prior to the institution of the suit did not amount to a formal defect and so it refused permission to the plaintiffs to withdraw from the suit.

(3.) Order 23, Rule 1(3) C.P.C. reads as :