AJIT KUMAR CHATTERJEE Vs. ANUPAM CHATTERJEE

JUDGEMENT

(1.) This revision application is filed by Ajit Kumar Chatterjee and six (6) others challenging the legality, correctness and propriety of the order dated 15.11.2006 passed by the learned Additional District Judge, Howrah in Misc. Appeal no. 16 of 2004 thereby affirming the order dated 23.12.2003 passed by the learned Civil Judge, Junior Division, 5th Court, Howrah in Misc. Case no. 3 of 2002 arising out of Title Suit No. 161 of 1986.

(2.) The Title Suit No. 116 of 1986 was instituted by the present petitioners against Tarapada Chatterjee, since deceased, the predecessor-in-interest of the opposite parties herein in the 5th Court of learned Civil Judge, (Junior Division), Howrah. Tarapada Chatterjee contested the suit by filing written statement. He died on 3.1.2001. Before his death, he filed a revisional application being C.O. No. 920 of 2000 against an order passed by the learned Trial Court while allowing an application under Order 6 Rule 17 of the Code of Civil Procedure. In that revision application before this Court, one Krishna Chatterjee was added to as defendant/petitioner. Since Tarapada died and was not substituted by his legal representatives within the prescribed period of time, the suit abated as a whole. THE present petitioners filed an application under Order 22 Rule 9 read with Section 151 of the Civil Procedure Code together with a petition under Section 5 of the Limitation Act praying for setting aside the abatement of the suit. That petition was registered as Misc. Case no. 3 of 2002. THE learned Court by his order dated 23.12.2003, dismissed the Misc. case. THE petitioners preferred an appeal against that order in the Court of learned District Judge, Howrah which was ultimately disposed of by the learned Additional District Judge, 2nd Court, Howrah. THE learned Additional District Judge by his order dated 15.11.2006 dismissed the Misc. Appeal no. 16 of 2004. Being dissatisfied with and aggrieved by the said order, this application under Article 227 of the Constitution of India has been filed by the present petitioner on the following grounds :- a) that the learned Appellate Court failed to exercise its jurisdiction properly; b) that the learned Court erred in holding that the petitioners were supposed to filed regular appeal in stead of appeal under order 43 Rule 1 of the Code; c) that the learned Court was oblivious of the fact that the suit was not abated as a whole because of substitution of deceased Tarapada by one Krishna Chatterjee in C.O. no. 920 of 2000 and; d) that the learned Court failed to consider that the petitioner had sufficient cause for not filing the petition for substitution within the prescribed period; THE petitioners' claimed setting aside of the order impugned.

(3.) It is settled principle of law that if the right to sue does not survive to the surviving defendant alone and the legal representatives of the deceased defendant are not brought on record by an application within prescribed time, the suit shall in the first instance a bate so far as the deceased defendant is concerned. In the case at hand Tarapada was the sole defendant in the Title Suit No. 116 of 1986. Admittedly Tarapada died on 3.8.2001. The present petitioners were informed about his death on 11.12.2001. By this time the suit was abated as a whole because no legal representative was brought on record in place of Tarapada and, therefore, the suit could not be proceeded against any defendant because of abatement of the suit as a whole. The suit, therefore, Virtually decreed and must be considered to have determined the rights between the parties within the meaning of Section 2(2) of the Code. The order refusing to set aside abatement when the suit itself having been decreed, a Misc. Appeal under Order 43 Rule 1 of the Code can not be entertained.