MARIAPRAKASAM Vs. UPAKARAMARY

JUDGEMENT

(1.) THE purchaser of the suit property, pending suit, filed an application underO.22, Rule 10, C.P.C, which was dismissed, hence the present revision petition.

(2.) ONE Arockiamariammal filed a suit O.S.No.125 of 1996 on the file of District Munsif Court, Virdachalam for declaration and injunction which was subsequently transferred to Judicial Magistrate-cum District Munsif, Kattumannarkoil and re-numbered as O.S.No.207 of 2001. Pending suit, the said Arockiamariammal sold the suit property under a registered sale deed dated 18.6.1986 for a consideration of Rs.5,800 to the petitioner herein. She passed away on 30.4.1988. After her death, her daughter Uthiriyamary filed I.A.No.2128 of 1989 before District Munsif Court, Virdachalam to implead herself as a party along with a petition to set aside the abatement and to condone the delay, which was re-numbered as I.A.No.377 of 2001 and I.A.No.230 of 2001 respectively before the District Munsif-cum-Judicial Magistrate, Kattumannarkoil. It is stated that her daughter did not have any subsisting right in the suit property since the same was sold to the petitioner, he filed I.A.No.2064 of 1988 on 27.9.1988 before the District Munsif Court, Virdachalam, which was re-numbered as I.A.No.229 of 2001 after transfer before District Munsif-cum-Judicial Magistrate, Kattumannarkoil. It is also stated that the daughter, who sought to implead herself as a party also died. The first defendant also died on 30.6.2001. The petitioner has filed I.A.Nos.654 of 2001 and 655 of 2001 which were allowed on 14.11.2002. The application filed by the petitioner herein to implead himself as second plaintiff in I.A.No.229 of 2001 was opposed by the respondents on the ground that the same was not filed within 90 days from the date of death of plaintiff, hence, after expiry of 90 days, abatement is automatic and without filing an application to set aside the abatement, the application filed to implead is not at all maintainable.

(3.) WHEN we look into the provisions of O.22, Rule 10, C.P.C., so long as no final decree has been passed, the assignee can carry on the suit and cannot in disregard thereof file a new suit for the same relief. While exercising the jurisdiction under this Rule, the Court must consider the prima facie equities among other things. Devolution of interest by death is governed by O.22, Rules 2 to 4.O.22, Rule 10 applies to all other cases of devolution. Sec.146, C.P.C. governs the situation.