JAYANTA KUMAR DAS Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) In a suit for recovery of money filed by United Bank of India (in short, 'the plaintiff') present petitioner Jayanta Kumar Das was defendant No. 2 and one Harekrushna Behera was defendant No. 1. Plaintiff's case in short was that the said Harekrushna Behera had availed loan from the plaintiff for purchase of a Bus. Apart from other securities, defendant No. 2 stood as a guarantor for repayment. As there was default in repayment, plaintiff filed Title Suit No. 277 of 1988 -II before the learned Additional Subordinate Judge, Balasore as the Court was then designated. Though notice was sufficient on Harekrushna, and he appeared on several dates, he chose not to file written statement and after a certain stage did not participate in the proceeding. Accordingly he was set ex pane. Subsequently he died while the suit was pending. Defendant No. 2 petitioner filed an application for bringing on record legal representatives of Harekrushna. The motive was objected to by the plaintiff, stating that choice of bringing a party on record is that of the plaintiff as clearly stipulated under Order 22, Rule 4(4) of the Code of Civil Procedure, 1908 (in short 'the Code'), and there was no scope for bringing on record the legal representatives of defendant No. 1 on the motion made by defendant No. 2. The stand was accepted by the learned Additional Subordinate Judge by the impugned order.

(2.) IT is to be noted here that since no reasons were indicated by the learned Additional Subordinate Judge while rejecting the prayer, this Court by order dated 25 -6 -1993, had directed him to pass a reasoned order which has been done and reasons have been indicated by order dated 20 -8 -1993.

(3.) STAND of the plaintiff is that the death of a defendant who has not filed written statement is of no consequence as is clearly provided in Sub -rule (4) of Rule 4 of Order 22.