UNITED COMMERCIAL BANK Vs. DHARAM PAUL SINGH

JUDGEMENT

(1.) This order is meant to dispose of three petitions viz. O.M.P. (M) No.31 of 1987, O.M.P. No.404 of 1987 and O.M.P. No.201 of 1988.

(2.) The facts giving rise to the aforesaid three applications are not disputed. United Commercial Bank filed a Civil Suit on April 21, 1987 for the recovery of a sum of Rs. 2,44,996.95 P. for having advanced a truck loan to defendant 1 as the principal borrower against the guarantee furnished by defendants 2 and 3. Summonses issued to defendant 2 for July 9, 1987 were received back in the Registry with a report dt. May 26, 1987 that Shri Vinod Kumar, defendant 2, had died as back as on Mar, 18, 1986. It was on the above facts that the plaintiff - bank moved O.M.P. (M) No. 31 of 1987 under provisions of O.22, R.4 C.P.C. for bringing on record the legal representatives of the said defendant. This application was filed in the Court on Oct. 9, 1987 along with O.M.P. No. 404 of 1987 under S.5 of the Limitation Act praying for condonation of delay for bringing the proposed legal representatives of defendant 2 on record. The third petition bearing No. 201 of 1988 has been filed under the provisions of S.151 C.P.C. praying that the main petition No. 31 of 1987 be taken to have been filed under the provisions of O.1, R.10 C.P.C. also and disposed of accordingly.

(3.) There cannot be two opinions about the proposition of law that the civil suit having been filed against a dead person cannot be deemed to be a proper suit against his legal representatives. It is further well settled that the provisions of O.22, R.4, C.P.C. cannot apply to a situation like this for the simple reason that defendant 2 was not alive on the day when the suit had been instituted. It is only if a defendant dies during the pendency of the suit that the said provisions can be invoked. The above position still leaves the question as to whether the legal representatives of defendant 2 can be now added as parties in this very civil suit or not under the provisions of O.1, R.10, C.P.C. read with S.153, C.P.C.