ROJAPPA ALIAS THABATI BELCHADA Vs. MUTHAPPA BELCHADA

JUDGEMENT

(1.) O. S. No. 42 of 1983 came to be filed by one gangu belchadthi for partition and separate possession of the suit property on the file of the learned civil judge (senior division), udupi. The said suit came to be decreed and a preliminary decree was passed against the defendants. Being aggrieved by that preliminary decree, the first defendant therein preferred initially before this court r. f. a. No. 443 of 1986, but subsequent to the amendment of civil courts Act, the appeal stood transferred to the ii additional district judge, d. k. , mangalore and the same was registered in r. a. No. 165 of 1989. When the appeal was pending the first respondent/plaintiff died on 26-7-1993. The first respondent counsel filed a memo reporting the death of the plaintiff/first respondent on 28-6-1995. Thereafter the first defendant/appellant filed i. a. under order 1, Rule 10 of the CPC to bring the legal representatives of deceased plaintiff as respondents in her place. That application was opposed by the respondents and ultimately, the same came to be rejected by the learned court below, the relevant paragraph reads as follows:

(2.) AT the very outset, the learned counsel for the respondents raised objection that the appeal has been dismissed by the court below and that therefore, the petitioner ought to have filed an appeal under order 43, Rule 1 of the CPC. From the perusal of the order referred above, it is clear that the court has taken into consideration the bona fides of the parties which required to consider the application under order 22, Rule 9 of the CPC. Forgetting for the moment that the application is filed under order 1, Rule 10 of the CPC, order 1, Rule 10 of the CPC gives an independent right to the parties to come on record but under order 22, Rule 9 of the CPC and other relevant rules, it is for the parties to bring on record the l. rs of the parties. That is also governed under Section 5 of the Limitation Act and a discretion is given to the court to condone the delay and set aside the abatement order if there is abatement. In an application filed under order 1, Rule 10 of the CPC the question of limitation does not arise more so in a suit for partition. Similar question arose before the Calcutta high court in Provat Chandra Coomar and others v Rabindra Nath Coomar and others, wherein it is held as follows:

(3.) ACCORDINGLY, this revision petition is allowed and the impugned order dismissing la. No. Ii is set aside and r. a. No. 165 of 1989 is restored on the file directing the court below to permit the appellant to amend the appeal memo by bringing the l. rs of the first respondent as respondents l (a) to l (i ).