CHERUKUTTY Vs. VELAPPU

JUDGEMENT

(1.) OS No. 202 of 1975 was filed by Thomas as plaintiff against the defendant (respondent herein) for realisation of money on the basis of a promissory note. By assignment deed, Ext. A1, dated 7-9-1978 Thomas had assigned his rights to the petitioner to realise the money under the promissory note. As per the said document petitioner claims right to prosecute the suit. The assignment deed was registered on 28-9-1978. It is the case of the petitioner that after obtaining the document he and the plaintiff approached plaintiff's lawyer and entrusted with him the assignment deed and gave instructions to implead the petitioner, that plaintiff's lawyer assured the petitioner that he would do the needful, that plaintiff died in November 1979 and that the petitioner realised later that he was not impleaded in the suit. Thereafter he filed IA No. 5 of 1980 to implead him as additional plaintiff. IA No. 6 of 1980 was filed for consequential amendment. The court dismissed both the petitions. After dismissing IA No. 5 of 1980 the Court held that the suit has abated as legal representatives did not come in time.

(2.) Learned counsel for the petitioner submitted that no time has been prescribed under the Code of Civil Procedure for a person to get himself impleaded as additional plaintiff pursuant to obtaining the rights of the original plaintiff and therefore as Ext. A1 confers right to the petitioner to prosecute the suit in the place of the plaintiff-assignor the court below ought to have allowed the petitions and should not have dismissed the suit as abated. It is pointed out that immediately after the death of Thomas the petitioner had filed the petitions and therefore it can never be said that they were filed beyond time.

(3.) O.22 R.3 of the Code of Civil Procedure provides for the procedure in case of death of one of several plaintiffs or of sole plaintiff. O.22 R.3(1) of the Code reads: