DODDAPPA MARITAMMAPPA v. ERAPPA MUDAKAPPA — 1981 DIGILAW 299 (KAR)

K. A. SWAMI, J. ( 1 ) AT the stage of admission, the respondents are notified. Accordingly, the 1st respondent has put in appearance through a counsel. Hence the matter is heard on merits. ( 2 ) THIS civil revision petition is directed against the order dated 4-2-1981 passed on I. As. 4, 5 and 6 by the learned 2nd Additional Munsiff, hubli, in OS No. 25 of 1976 allowing the applications. I. A. No. 4 is an application filed by the plaintiff under order 22 Rule 4 of CPC (hereinafter retired to as 'the Code'), to bring the legal representatives of the deceased 1st defendant on record. LA. No. 5 is an application under sec. 5 of the limitation Act for condonation, of delay in filing the L. R. application. I. A. 6 is an application under order 22 Rule 9 of the Code, for setting aside the abatement. As per Ext.-D, an extract from the death register, the first defendant died on 18-11-1977. The aforesaid application came to be filed on 3-7-1980. A memo about the death of the 1st defendant was filed by the counsel representing the 1st defendant on 26-6-1980. The parties have adduced evidence on these applications. ( 3 ) THE learned trial Judge was of the view that as the memo under order 22 Rule 10a of the Code, was filed by the counsel for the first der fendant, on 26-6-1980; that the counsel for the 1st defendant himself was not aware of the death, of the 1st defendant; that it was the duty of the counsel appearing for the deceased 1st defendant to intimate the Court about the death of the 1st defendant. Accordingly, it has been held by the trial court that under these circumstances, the defendants cannot be permitted to resist the applications having regard to the provisions contained in order 22 Rule 10a of the Code and it! has accordingly allowed the applications. ( 4 ) IT appears to me that the learned munsiff has not correctly and properly understood the scope of Rule 10a of order 22 of the Code. He has misdirected himself in overemphasising the importance of the said rule. Rule 10a of Order 22 of the Code came to be inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Central Act No. 104 of 1976 ). He has misdirected himself in overemphasising the importance of the said rule. Rule 10a of Order 22 of the Code came to be inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Central Act No. 104 of 1976 ). The Law commission, while recommending this provision in its 54th report, has observed that such a provision will,, to some extent, reduce the complications that arise by reason of the plaintiff's ignorance of the death of a defendant. By a legal fiction, the contract between the pleader and the' deceased is continued for the purpose of enabling the counsel to inform the court about the death of the party; as otherwise, the contract between the party and the pleader comes to an end on the death of the party; and he ceases to have an authority to act on his behalf. Thus, it is clear that the said provision has been inserted to enable the pleader to inform the court if he comes to know about the death of the party represented by him, with an object that in a case where the plaintif, or the appellant, or the petitioner, as the case may be, is ignorant of the death of the defendant, or the respondent as the case may be, it will facilitate him to make an application to bring the legal representatives of the deceased party on record and thereby the further delay in the progress of the proceeding may be avoided. But, there is nothing in Rule 10a of Order 22 of the code, which enables the court to hold that the limitation to file an application to bring the legal representatives of the deceased party on record commences from the date of informing the court about the death of the party by the counsel representing the said party or to hold that the plaintiff, or the appellant, or the petitioner, as the case may be, who is required to make an application to bring the legal representatives of the deceased party on record within the period prescribed under law, is relieved of the burden to explain the delay in making such application The starting point of limitation for filing an application to bring the legal representatives of the deceased party on record is the date of the death of the party to the proceeding (vide Art 120 of the Limitation Act, 1963 ). The suit or the appeal or the petition as the case may be, abates on the expiry of 90 days from the date of the death of the party to the proceeding; if no application to bring the legal representatives on record is made within that period As per Art 120 of the Limitation Act, within 60 days from the date of abatement an application to set aside an abatement under Order 22 Rule 9 of the Coae, is required to be made. In the case of delay in filing the applications, the party is required to prove sufficient cause for not making the applications in time. As such, irrespective of the intimation given to the court by the counsel about the death of the party, whom he represented, the plaintiff or the appellant or the petitioner as the case may be, is required to show sufficient cause for the delay in filing the applications Thus, the "trial court, by placing wrong interpretation on Rule 10a of Order 22 of the Code, which has affected the decision in the case, has committed an illegality in the exercise of its jurisdiction. The learned Munsiff is not correct in holding that having regard to the provisions contained in Rule 10a of Order 22 of the Code and the memo filed by the counsel for the deceased- 1st defendant on 26-6-1980 it is not open for the defendants to resist the applications. The court was required to find out whether the sufficient cause had been shown for the delay in making the applications which it had failed to do. Consequently, the order under revision is vitiated and the same cannot be sustained ( 5 ) ACCORDINGLY, this civil revision petition is allowed The order dated 4-2-1981 passed by the learned II additional Munsiff, Hubli, is set aside and I. As 4, 5 and 6 are remitted to the trail court with a direction to decide the same afresh in accordance with law and in the light of the observations made in this order. --- *** --- .