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Bai Javer and Magan Davlat Vs. Hathising Kesrising and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom56
AppellantBai Javer and Magan Davlat
RespondentHathising Kesrising and anr.
Excerpt:
civil procedure code, act xiv of 1882, sections 365, 368 and 582--deceased sole respondent--parties--practice. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court..........decide the appeal, as hi the first plaintiff had been the only respondent.2. the assistant judge has treated the application in question as authorized by section 365 of the civil procedure code extended to the case of appeal by section 582. but the present applicants to be placed on the record are not the representatives]of a deceased appellant, but of a deceased respondent. section 368 enables the plaintiff to have the representatives of a deceased sole defendant placed on the record, so that he may continue his suit against them but there is no section in chapter xxi which provides for the representatives of a sale defendant who has died being placed on the record on their own request, and, therefore, section 582 can supply no such procedure in the case of the death of a sole.....
Judgment:

Charles Sargent, C.J.

1. It is plain that when this Court struck out the second plaintiff from the record and sent the case back for retrial on the merits, it meant that the Court of appeal should proceed to decide the appeal, as Hi the first plaintiff had been the only respondent.

2. The Assistant Judge has treated the application in question as authorized by Section 365 of the Civil Procedure Code extended to the case of appeal by Section 582. But the present applicants to be placed on the record are not the representatives]of a deceased appellant, but of a deceased respondent. Section 368 enables the plaintiff to have the representatives of a deceased sole defendant placed on the record, so that he may continue his suit against them but there is no section in Chapter XXI which provides for the representatives of a sale defendant who has died being placed on the record on their own request, and, therefore, Section 582 can supply no such procedure in the case of the death of a sole respondent. The application should, therefore have been refused on the ground that it was not one authorized by the Civil Procedure Code. We must, therefore, reverse he order of the Assistant Judge, and disallow the application, with costs throughout.


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