KAMLESHBHAI SHANTILAL PATEL Vs. ASHOKKUMAR BACHUBHAI PAKHALI

JUDGEMENT

(1.) The petitioners are the legal heirs of deceased Shantilal Jibhaibhai Patel, who was arraigned as respondent no.2 being the owner of the involved vehicle. The heirs are challenging the judgment and award on the ground that Shantilal Jibhaibhai Patel died on 8/12/2010, stating that the award is a nullity and, therefore, no charge can be created on the estate of the deceased and thus, prayer is made to quash and set aside the order passed below Exh.-22 by the MACT (Aux.), Anand in Execution Application No.66 of 2017.

(2.) Advocate Mr. Dilip B.Rana, learned advocate for the petitioners, relied on the judgment of Mst. Bibi Rahmani Khatoon And Ors. Vs. Harkoo Gope And Others., reported in AIR 1981 Supreme Court 1450, to submit that, in paragraph-10, the concept of abatement known to civil law, has been explained and state that if the party to a proceeding either in trial Court or any appeal or revision dies and the right to sue survives or a claim is to be answered and the legal heirs and legal representatives who have to be substituted, and failure to do so would result into abatement of the proceedings.

(3.) Per contra, Advocate Mr. D.N. Pandya for respondent no.1 states that the deceased Shantilal Jibhaibhai Patel was represented by a Lawyer - Mr. J.R. Trivedi on record, and Order-22 Rule 10A of the Code of Civil Procedure, 1908 states that whenever a party is represented by a pleader, and, if he comes to know about the death of the party, he has to inform to the Court, and the Court shall there upon give notice to the other party; thus, Mr. Pandya submitted that it was responsibility of Advocate on record to inform the death of the concerned.