LINGALA BHAGYA LAXMI Vs. LINGALA PRABHU LINGAM

JUDGEMENT

(1.) THIS Civil Revision Petition arises out of order dated 22 -12 -2014 in I.A.No.1215 of 2014 in O.S.No.457 of 1997 on the file of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar.

(2.) RESPONDENT Nos.1 to 6 have filed the above mentioned suit for partition of the suit schedule properties. Pending the suit, respondent Nos.4 and 5 have died. This case is concerned with the death of respondent No.5. It is not in dispute that respondent No.5 died as far back as the year 1999. More than 15 years later, the applicants who claimed to be the legal heirs of the deceased respondent No.5, filed I.A.No.1215 of 2014 under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for short the Code) for their impleadment as plaintiff Nos.7 to 10 in the suit in place of their deceased father. The said application was dismissed by the lower Court. Feeling aggrieved thereby, the unsuccessful applicants filed the present Revision Petition.

(3.) UNDER Order XXII Rule 3(1) of the Code where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under sub -rule (2) thereof, where within the time limited by law no application is made under sub -rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. Under Rule 9(2) of Order XXII of the Code, the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set -aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement of dismissal upon such terms as to costs or otherwise as it thinks fit. Under Rule 9(3), the provisions of Section 5 of the Indian Limitation Act 1877 (15 of 1877) are made applicable for considering an application under sub -rule (2) of Order XXII of the Code.