ABHIRAM NAIK Vs. KRUSHNA CHANDRA NAIK AND ORS.

JUDGEMENT

(1.) THE short point that falls for consideration in this revision application is whether power under Order 1, Rule 10 of the Code of Civil Procedure, 1908 (in short 'C.P.C.') can be exercised, to implead legal representatives of a deceased party when an application under Order 22, Rule 4, Code of Civil Procedure to bring the said legal representatives on record has been dismissed.

(2.) THE factual background in short is, that a suit was instituted for a declaration that the Defendants were encroachers in respect of Schedule 'B' lands, mandatory injunction for removal of certain construction, restoration of possession and' permanent injunction. One of the Defendants (Defendant No. 1) died on 3.4 -1982. Plaintiffs filed (I petition under Order 22, Rule 4, stating that Defendant No. 1 Natabar died on 3 -4 -1982 leaving behind three sons, two daughters and his widow; Defendant No. 4 Murali was one of the sons of deceased Defendant No. 1, who also died on 31 -7 -1986 unmarried; some of the legal representatives of late Natabar were already on record as Defendant Nos. 2 and 3. Prayer was made to substitute the widow and two daughters in place of deceased Natabar and to delete the name of Murali. Application was also filed under Section 5 of the Limitation Act, 1963 to condone the delay. In all, three applications were filed for condonation of delay, setting aside abatement and substitution. The prayers contained in the petitions were rejected excepting the one to delete the name of deceased Muralidhar. It was held by order dated 2 -12 -1988 that the suit abated against Defendant No. 1. Admittedly the said order has not yet been assailed. Subsequently, two petitions were filed before the learned Munsif. One of the petitions was filed by the Defendants to declare that the entire suit had abated on account of the abatement of the suit in respect of Defendant No. 1. The other petition was filed by the Plaintiffs under Order 1, Rule 10, Code of Civil Procedure with Section 151, Code of Civil Procedure to implead the widow and daughters of deceased Defendant No. 1. The prayer was allowed by the impugned order which is assailed in this revision application.