JOSE JOSEPH Vs. KOYAKUTTY SAIDU

JUDGEMENT

(1.) Petitioner is the plaintiff. Second respondent is the second defendant. First respondent is the deceased first defendant. On the death of first defendant, his legal heirs were not impleaded within the period. Plaintiff then filed I.A.1814/06 for impleading the legal representatives and I.A.1813/06 to condone the delay and I.A.1837/06 to set aside the abatement. Under Ext.P1 order learned Munsiff dismissed the applications. It is challenged in this petition filed under Article 227 of the Constitution of India. In this petition also, deceased first defendant is shown as first respondent.

(2.) Learned counsel appearing for the petitioner and the respondents were heard.

(3.) When one of the defendants in a suit dies and a petition is filed to implead the legal heirs, notice must be sent to the proposed legal representatives in the application as it is for them to say whether the suit as against them is abated or not. It is more so when the impleading application was not filed within the period and applications are filed to set aside the abatement as well as to condone the delay in filing the application. Unfortunately learned Munsiff did not direct notice to be served on the proposed legal heirs before disposing the applications. It is for the legal heirs to contend whether the suit as against them is abated due to the death of first defendant and for the failure to implead them within the period provided under the Code. In such circumstances, Ext.P1 order is quashed. Learned Munsiff is directed to issue notice to the proposed legal heirs of the first respondent and pass appropriate order after affording an opportunity to the legal heirs, to file objection to the applications. Writ Petition is disposed as above.