NARAIN BARALIA Vs. RAJESHWAR DAYAL

JUDGEMENT

(1.) In the suit for winding up of the affairs of a dissolved partnership and rendition of accounts which was filed in the year 1982, a preliminary decree was passed on 10.5.1985 and it was directed that accounts have to be gone into and the assets and liabilities of the partnership distributed.' It was in that context that issues were framed on the same day.

(2.) It was during pendency of the proceedings for taking of the accounts and distribution of the assets and liabilities that an application (IA 7461/87) was Filed by one Vinay Kumar Mahajan (hereinafter referred to as the application) under Order 22 Rule 10 of the Code of Civil Procedure (for short 'CPC') for being substituted in place of the plaintiff on the basis of an agreement dated 10.2.1987 that he had become absolute assignee of the entire share of the plaintiff and thus had a right to ebe substituted in place of the plaintiff. The application was opposed by the defendants and it was dismissed on 31.10.1990. An appeal was preferred by the applicant against this order, namely, FAO (OS) 210/90. Plaintiff was also arrayed as one of the parties in the appeal. On 2.11.1990, the plaintif expired. On 1.10.1992, on the statement made before the appellate court that no application had been filed in the suit for bringing the legal heirs of the plaintiff on record, the suit would stand abated on the expiry of 90 days of the death and since suit had abated it will be a futile exercise to decide the appeal, lhc same was dismissed as infructuous. This order was passed on 1.10.1992m the appeal.

(3.) Before the aforementioned order was passed dismissing the appeal as infrcutuous, a statement was made in the suit on 20.12.1990 on behalf of counsel for t plaintiff Mr. R.L. Gupta that the plaintiff had expired and an application to bring on record the legal representatives had been Filed. In view of this statement the suit was directed to be posted before the Deputy Registrar on 5.2.1991. On 5.2.1991 IA l(13')8/90, which was presented by the applicant on 24.11.1990 under Order 22 Rule 3 CPC for bringing on record the two sons of the plaintiff on record as the legal representatives was taken up and a notice was directed to be issued for 14.5.1991 to the proposed legal representatives of the deceased plaintiff as also to the defendants through their counsel, although Mr. Sudhbir Nandrajog, Advocate for defendant No.1 was present and his appearance was recorded before the Jt. Registrar. No proceedings took place on this application on 14.5.1991 and 11.9.1991. On 12.3.1992 again a notice was directed to be issued on this application to the proposed legal representatives and to the defendants through their counsel for 30.7.1992 and since notice could not be issued for want of process fee, therefore, fresh notice was directed to be issued. In the meanwhile, as noticed above, aforementioned order came to be passed in the appeal, which had been preferred by the applicant.