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M.A. Davar Vs. Ahmad Ali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Rule No. 528 of 1949
Judge
Reported inAIR1952Cal219
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 2 and 4
AppellantM.A. Davar
RespondentAhmad Ali Khan and ors.
Appellant AdvocateMd. Asir, Adv.
Respondent AdvocateSitaram Banerjee and ;Asutosh Ganguly, Advs.
DispositionApplication allowed
Excerpt:
- .....period irrespective of the fact whether a note has been made of that fact or not. it is not the note of abatement as entered in the order sheet on 26-8-1949 which would stand in the way of recording the proper order under order 22, rule 2 of the code. ah that is necessary is that the previous note made by the registrar without his attention being drawn to the fact that the heirs were already on the record may be vacated & by the court suo motu without any petition by the parties concerned. the court is competent to pass an order vacating an earlier one specially of the description now before me.4. the application made under rule 2 of order 22 is allowed and let a note of this fact be made. as no objection is raised before me about the fact that opposite parties nos. 1 to 3 are the.....
Judgment:
ORDER

R.P. Mookerjee, J.

1. The opposite party No. 4 was reported to be dead by the serving peon in his report dated 22-5-1949. No application for substitution having been filed for a period over 90 days from the date of the peon's report the Registrar recorded an order on 26-8-1949, that there had been abatement so far as opposite party N. 4 was concerned. On 10-11-1949, an application was filed on behalf of the petitioner with notice to the surviving opposite parties that on the death of opposite party No. 4, opposite parties 1 to 3 were the heirs of the said deceased opposite party No. 4 & that a note might be made to that effect. An objection was raised on behalf of the opposite party Nos. 1 to 3 to the effect that opposite parties Nos. 1 to 3 had been on the record previously in their personal capacity; on the death of opposite party No. 4, their mother, they were representing her interest in a different capacity. It was contended that an application for substitution in such a case was necessary & no such application having been made within the period of limitation, the note which had been made of the abatement so far as opposite party No. 4 was concerned must be allowed to stand.

2. The present application is one under Rule 2, of Order 22 C. P. C. This rule provides that when the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone an entry to that effect was to be made on the record. The question of capacity or status as raised by Mr. Banerji on behalf of opposite parties Nos. 1 to 3 is not relevant when the heir is already on the record in his individual capacity. Whether he is there as heir to A or B is wholly immaterial. If it could be shown that the person already on the record does not, represent the interest of the deceased party in his individual capacity but under some other status as a Trustee or a Receiver, then certainly a question might have been raised as to whether A in his individual capacity might be taken to be representing the interest of the deceased not in his individual capacity but under a different status as a Receiver or a Trustee. In such a case, a separate, application for substitution would be necessary but a simple note under Rule 2 of Order 22, C. P. C. Will be sufficient if the interest of the deceased party devolves on a person already on the record in the same capacity as he was from before. This objection must, therefore, be overruled.

3. It is next contended that a note having already been made on 26-8-1949 of' abatement in respect of opposite party No. 4, a separate application must be filed by the petitioner for setting aside the abatement before a note can be made as prayed for in the petition filed by the petitioner on 10-11-1949. This objection also cannot be upheld. Abatement on the death of a particular party takes effect on the expiry of the statutory period irrespective of the fact whether a note has been made of that fact or not. It is not the note of abatement as entered in the order sheet on 26-8-1949 which would stand in the way of recording the proper order under Order 22, Rule 2 of the Code. AH that is necessary is that the previous note made by the Registrar without his attention being drawn to the fact that the heirs were already on the record may be vacated & by the Court suo motu without any petition by the parties concerned. The Court is competent to pass an order vacating an earlier one specially of the description now before me.

4. The application made under Rule 2 of Order 22 is allowed and let a note of this fact be made. As no objection is raised before me about the fact that opposite parties Nos. 1 to 3 are the heirs of deceased opposite party No. 4, the earlier note made by the Registrar about the abatement is also vacated.

5. There will be no order for costs.


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