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Romesh Chandra Das and ors. Vs. Anthony Penheiro and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.470
AppellantRomesh Chandra Das and ors.
RespondentAnthony Penheiro and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 20, scope of - party to suit includes representative of such party--power to add parties, to be exercised at hearing--setting aside, application for--abatement and substitution. - .....entry in the record that the right of appeal survives to rajani kanta in respect of the estate of mohendra lal das. mohendra lal das died on the 9th april 1914, and six months from the date of his death expired on the 8th october 1914. so far as this plaintiff is concerned there has been an abatement, and the proper course appears to me is to apply, if the party is so advised, to set aside the order of abatement and to substitute in the place of mohendra lal das romesh chandra das, who is said to be his administrator. now it is admitted that if a third party and not romesh had been the administrator, it would have been necessary to make such an application and then to apply for substitution in the place of mohendra lal das as his legal representative. but it has been submitted to us.....
Judgment:

1. This Rule is based on a petition which comprises two forms of relief. The first is that Durgesh Nandusi Debi, the administratrix to the estate of Rajani Kanta Das, should be made a respondent. Now, this lady is the widow and representative of the deceased plaintiff, Rajani Kanta Das, but through, it is said, inadvertence, she was not made a party to this appeal. An application, however, has been made to us to make her a respondent under the provisions of Order XLI, Rule 20, of the Code of Civil Procedure. I think that the words of that section 'any person who was a party to the suit,' etc., would, on a reasonable construction of the same, include the representative of such a party. But the difficulty in the way of the applicant is as has been pointed out by the learned Pleader on behalf of the opposite party, that the power given to the Court to add parties is a power which is to be exercised at the hearing, and doubtless it is necessary that the Court should have before it all the circumstances of the case. Therefore, so far as this part of the Rule is concerned, the petition is premature and must be rejected. This, however, will not stand in the way of the applicant applying to the Court at the hearing by a petition under Order XLI, Rule 20. The first part of this application is premature; and the only other matter which remains for us to consider is whether or not we should, as asked, make an entry in the record that the right of appeal survives to Rajani Kanta in respect of the estate of Mohendra Lal Das. Mohendra Lal Das died on the 9th April 1914, and six months from the date of his death expired on the 8th October 1914. So far as this plaintiff is concerned there has been an abatement, and the proper course appears to me is to apply, if the party is so advised, to set aside the order of abatement and to substitute in the place of Mohendra Lal Das Romesh Chandra Das, who is said to be his administrator. Now it is admitted that if a third party and not Romesh had been the administrator, it would have been necessary to make such an application and then to apply for substitution in the place of Mohendra Lal Das as his legal representative. But it has been submitted to us that the petitioner is excused from taking this course by reason of the fact that Romesh who is the administrator of Mohendra happens to be also on the record as plaintiff in his own capacity.

2. This, however, does not appear to me to be a sufficient answer. It may well be, as is pointed out, that where property has been obtained by inheritance by some person who is already on the record, it is not necessary that any further steps should be taken. But the present case appears to me one in which the substitution is necessary. The mere feet that the representative of a deceased person happens to be a party already on the record in his own right, does not dispense with an application for setting aside an abatement and substitution.

3. This part, therefore, of the application also fails and the Rule must be discharged with costs, the hearing fee being assessed at one gold mohur.


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