RAM PRASAD Vs. STATE BANK OF BIKANER

JUDGEMENT

(1.) PLAINTIFF opposite party, State Bank of Bikaner had filed a suit on 4-10-66 against Seth Sriniwas Murarka and others for the recovery of Rupees 2,67,147.20 on the basis of a mortgage. Sri Ram Prasad, a transferee of some of the mortgaged property was also implead ed as a defendant. Sri Ram Prasad filed a writ petition in the Hon'ble High Court and proceedings in the suit were stayed-The writ petition was disposed of on 7-4-66 and the stay order was vacated. During the pendency cA tne -writ petitkm on 1-2- 66 Sriniwas Murarka died. No steps were taken for bringing his legal representatives On record in \\ve writ pelvtiwx. The record was received in the Court below on 1-10-66. On 11-10-66 the plaintiff opposite party, Bank of Bikaner moved an applica tion under Order 22, Rule 4 and Order 6, Rule 17, C. P. C., mentioning therein that the sons of Sriniwas Murarka were al ready on record as defendants 2 to 4. It was also prayed that the two daughters, Smt. Durga Bai and Ram Bai be added as legal representatives of the deceased Sri niwas Murarka. An application under Sec tion 5 of the Limitation Act was also given. The condonation of delay was sought on the ground that the deponent who described himself as Manager of the Bank posted at Kanpur and doing pairvi on behalf of the plaintiff, or any other offi cer of the Bank had no knowledge about the death of Sriniwas Murarka before 1-10-66 when the case was listed at Rae Bareli. The affidavit further showed that it was only on 8-10-66 that the deponent who was the pairokar on behalf of the Bank could ascertain the names of the de ceased's daughters. The application was opposed. The learned Civil Judge condon ed the delay and allowed the application with the direction that the two daughters of the deceased will also be brought on record as legal representatives of the de ceased Sriniwas Murarka, hence this revi sion.

(2.) LEARNED counsel for the appli cant has contended that the suit had abated against Sriniwas Murarka when all the legal representatives of the deceased were not brought on record within the prescribed period and no application has been made for setting aside the abatement. Reliance has been placed by him on State of Punjab v. Nathu Ram, AIR 1962 SC 89; Sri Chand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427 and Swaran Singh Puran Singh v. Ramditta Badhawa (dead), AIR 1969 Punj and Har 216.

(3.) IT is well settled now that if there are several legal representatives, it is sufficient if at least one of them is im pleaded under Order 22, Rule 4, C. P. C-If a bona fide application within time made for substitution of some of the heirs only is sufficient to keep the suit alive, there is no reason why the same principle should not hold good in a case where some of the heirs are already on record. More over, as remarked earlier, an application for condoning the delay and bringing on record left over legal representatives was also made on 11-10-66 and the trial Court has rightly condoned the delay and allow ed the application for substitution. There does not appear to be any error much less Jurisdictional error in the disposal of the two applications.