INDIAN BANK Vs. SAMBASIVAN

JUDGEMENT

(1.) The plaintiff in OS.No.360/2006 of the Third Additional Sub Court, Ernakulam is the petitioner herein. The petitioner as plaintiff filed Ext.P1 suit originally against the 4th respondent and one Thankappan as OS.No.360/2006 on the allegation that the first defendant, who is the fourth respondent herein had availed a loan of Rs.70,000/- with the second defendant as guarantor on 22.9.2000. The second defendant apart from executing a personal guarantee, created an equitable mortgage in respect of his properties as security for the transaction. Since they have committed default in payment of the amount, the plaintiff filed the above suit against the above two persons on the bonafide belief that both were alive at that time. The second respondent entered appearance and filed a written statement stating that the second defendant died on 18.3.2002. The suit was filed on 29.6.2006. After making enquiries, the plaintiff filed IA.No.7030/2006 to implead Mrs. Valsala, wife of deceased second defendant as additional third defendant in the suit as the legal heir of the original second defendant, guarantor in the transaction on the bonafide belief that she is the only legal heir known to them at that time. That application was allowed and she was impleaded as additional third defendant. The matter was referred for Adalath and at that time, it was revealed through the third defendant that the second defendant has other legal heirs apart from the third defendant and they collected the particulars from her and filed IA.No.1993/2008 to implead the present respondents 1 to 3 and 6 and 7 as additional defendants 4 to 8 in the suit evidenced by Ext.P2. Respondents 1 to 3 entered appearance and filed objection to the same evidenced by Ext.P3. The court below allowed the application for impleading as per order dated 30.9.2008. Subsequently, respondents 1 to 3 filed IA.No.7968/2008 to review the order dated 30.9.2008 in IA.No.1993/2008 evidenced by Ext.P4. The petitioner filed Ext.P5 objection to the same. The court below by Ext.P6 order allowed the application and dismissed IA.No.1993/2008 as it is not maintainable on the ground that the suit was filed against a dead person and subsequent petition to implead the legal heirs is not maintainable relying on the decisions reported in Municipal Council, Calicut v. Thazhed Puthan Purayil Kunhipathumma and another (AIR 1933 Madras 454), Krista Das Law and others v. Khirada Kant Roy and others (AIR 1919 Calcutta 257), Karam Singh v. Mt. Maya Wanti and others (AIR 1932 Lahore 592) and Rampratab Brijmohandas and others v. Gavrishankar Kashiram (AIR 1924 Bombay 109). Aggrieved by the same, the present petition has been filed by the petitioner challenging the above order.

(2.) Heard Sri. K.N.Sivasankaran, learned counsel appearing for the writ petitioner and Smt. Valsamma Kurian Jose, learned counsel appearing for respondents 1 to 3 and 5 to 7. No appearance for the 4th respondent.

(3.) Learned counsel appearing for the writ petitioner submitted that at the time when the suit was filed, the plaintiff bank was not aware of the fact that the second defendant was no more and on the bonafide belief that he was alive, the suit was filed. Only when the written statement filed by the first defendant, it was revealed that he died in 2002 itself. Immediately they filed IA.No.7030/2006 to implead the wife of the deceased as the third defendant on the bonafide belief that she is the only legal heir of second defendant. Later when the matter was referred for Adalath, they came to know that there are other legal heirs and so they filed an application to implead other legal heirs also as IA.No.1993/2008 and that was allowed earlier. Later at the instance of respondents 1 to 3, an application was filed as IA.No.7968/2008 for review the order and that was allowed by the impugned order which is not correct. Further, he had also submitted that the suit was filed on the basis of the mortgage created by the deceased second defendant and all the legal representatives were impeaded within time for filing the suit for mortgage created by the second defendant. So it cannot be said that the suit against them is barred as well.