Skip to content


Badal Khan Vs. Murtaza and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.977
AppellantBadal Khan
RespondentMurtaza and ors.
Excerpt:
civil procedure code (act v of 1908), section 99, order xxii, rules 3 and 4 - sole appellant dying pending appeal--no application made to bring representatives on record--vakalatnama filed on behalf of the representatives--abatement--irregularity not affecting merits. - .....surviving plaintiff, musammat najjan. however, no application was made to the court to have the legal representatives of musammat najjan made parties and the decree which reversed that of the court of first instance was made in favour of musammat najjan who was, as already stated, dead at the time. order xxii, rules 3 and 4 of the code of civil procedure provide for the court making the legal representatives of the deceased plaintiffs and defendants parties to (he suit. rule 3, sub-rule (2) and rule 4, sub-rule (3) provide that where within the time limited by law no application to make such legal representatives a party is made the suit shall abate. it has to be admitted that no such application was ever made in the present case. it is argued that the matter may be treated as an.....
Judgment:

Richards, J.

1. One point only has been argued in this appeal. It appears that two ladies, namely, Musammat Muniran and Mussammat Najjan sued for a declaration that certain property against which the defendant held mortgage-decrees for sale was not saleable to the extent of their shares. Daring the progress of the suit one of the ladies, Musammat Muniran, died and the plaint was duly amended. The Court of first instance dismissed the suit. The surviving plaintiff appealed. While the appeal was pending she also died. A vakalatnama was filed on behalf of persons claiming to be the heirs of the surviving plaintiff, Musammat Najjan. However, no application was made to the Court to have the legal representatives of Musammat Najjan made parties and the decree which reversed that of the Court of first instance was made in favour of Musammat Najjan who was, as already stated, dead at the time. Order XXII, Rules 3 and 4 of the Code of Civil Procedure provide for the Court making the legal representatives of the deceased plaintiffs and defendants parties to (he suit. Rule 3, sub-rule (2) and Rule 4, sub-rule (3) provide that where within the time limited by law no application to make such legal representatives a party is made the suit shall abate. It has to be admitted that no such application was ever made in the present case. It is argued that the matter may be treated as an irregularity and that (he decree ought not to be reversed merely on the ground of such irregularity. Section 99 of the Code of Civil Procedure is relied upon. The respondents contend that in the present case the suit in the lower Appellate Court proceeded in the presence of a Vakil holding a vakalatnama on behalf of the legal representatives of Musammat Najjan and that the irregularity did not in any way affect the merits of the case. 1 regret I am unable to accept this contention. The order I have already referred to in express words provides for the abatement of the suit in the events which admittedly happened in the present case. I must allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instances. Under the circumstances I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //