HARINANDAN PRASAD Vs. BASMATI DEVI

JUDGEMENT

(1.) THIS Civil Revision petition has been preferred by the defendants petitioners against the order dated 25.8.1992 passed by the Subordinate Judge III, Muzaffarpur in Title Suit No. 179 of 1991 whereby he rejected the petition filed by the defendants petitioners to recall the order dated 24.2.1992 passed by his predecessor. The facts to the extent relevant may be briefly noticed.

(2.) ON 9.10.1991 Title Suit No. 179 of 1991 was filed by the plaintiff/opposite party Smt. Basmati Devi against Smt. Kausalya Devi, who was the sole defendant in the suit. On 11.10.1991 the Court admitted the plaint and thereafter issued appropriate directions regarding issuance of notices etc. and also passed an order directing the defendant to maintain status quo. It appears that the sole defendant in the suit namely Kausalya Devi had died earlier on 12.12.1987 and this fact was also known to the plaintiff since in another suit, namely Title Suit No. 191 of 1986, in which the plaintiff was defendant No. 1, legal representative of Kausalya Devi had been substituted after her death on 4.4.1988. Much later on 24.2.1992 an application was filed by the plaintiff/opposite party for bringing oh record the petitioners defendants on the ground that the defendant, Smt. Kausalya Devi was dead. The said application was treated as one under Order VI, Rule 17 of the Code of Civil Procedure. The said application was allowed and accordingly the petitioners defendants were brought on record as defendants in the suit. It may be noticed that the application under Order VI, Rule 17 of the Code of Civil Procedure was filed on 24.2.1992 and was allowed on the same day.

(3.) IT was sought to be urged before us that no suit can be filed against a dead person and, therefore, the Title Suit purported to have been filed on 9.10.1991 by the plaintiff/opposite party against Smt. Kaushalya Devi, the sole defendant, was in law a nullity, and, therefore, no interim order or any other order, including an order for bringing on record the legal representatives of the deceased defendant could be passed. Counsel submitted that such a suit has been judicially described as a still born suit. Counsel for the plaintiff/opposite party, however, submits that once the legal representatives of the deceased defendant were brought on record, the suit could be treated as a new suit as from the date on which an application was filed for bringing on record the legal representatives of the deceased defendant.