RASILA RAM Vs. TARA CHAND

JUDGEMENT

(1.) By way of this petition filed under Article 227 of the Constitution of India, petitioners herein have assailed the order passed by the Court of learned Civil Judge (Sr. Divn.), Nadaun, District Hamirpur, in CMA No. 58/2018, filed in Civil Suit No. 58/2006, titled as Tara Chand vs. Rasila Ram and others, vide which, learned Trial Court allowed the application filed under Order 1, Rule 10 of the Code of Civil Procedure for deleting the name of defendant No. 2 therein and substituting the said deceased-defendant with his legal representatives.

(2.) Contention of learned Counsel for the petitioner is that the order, which has been passed by the learned Court below, is not sustainable in the eyes of law because as defendant No. 2 before the learned Trial Court had died before passing of the preliminary decree by the learned Trial Court which was so passed on 31.05.2012, the decree so passed is a nullity and it could not be rectified by way of substituting the legal representatives of deceased-respondent No. 2.

(3.) On the other hand, learned Senior Counsel appearing for the respondent has argued that there was no infirmity with the order passed by learned Trial Court nor it could be said that the preliminary decree passed by the learned Trial Court was a nullity, because in the suit, which was filed for partition, plaintiff was only claiming his undisputed share out of the joint suit property.