BINOD RANI AGRAWAL Vs. RINKI KUMARI

JUDGEMENT

(1.) Present Civil Misc. has been preferred to set aside the order dtd. 19/7/2023, passed in Title Suit No. 77 of 2017 whereby and whereunder the learned Sub Judge I, Munger has allowed the substitution petition, filed by the plaintiff/respondent under Order XXII Rule 4 of the Code of Civil Procedure without application of judicial mind.

(2.) As per respondent's case, the plaintiff/ respondent (mortgagee) asked again and again to Shri Awadhesh Kumar Das (mortgagor) to return the loan amount and take back the suit property but he completely refused and hence, lastly he filed the said Title Suit No. 77 of 2017 for declaration of right title and interest over the suit property. Learned counsel for the petitioners submits that respondent/plaintiff has filed a Title Suit, bearing No. 77 of 2017, in the Court of learned Sub Judge I, Munger regarding the property mortgaged by Shri Awadhesh Kumar Das (since deceased) in favour of respondent by registered mortgaged deed, dtd. 26/5/2014.

(3.) Learned counsel for the petitioner submits that from a plain reading of Order XXII Rule 4 of the Code it clearly transpires that this provision applies only where the death of one of the several defendants, or of the sole defendant, occurs during the pendency of the suit. If a defendant has already expired prior to the institution of the suit, his legal representatives cannot be brought on record under Order XXII Rule 4 CPC. Therefore, in the present case, the substitution petition under Order XXII Rule 4 was not maintainable in law, and the suit itself was liable to be rejected at the very threshold.