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2004 DIGILAW 66 (MAD)

R. Sekhar v. Rangasami Chettiar & Others

2004-01-29

T.V.MASILAMANI

body2004
Judgment :- This revision has been filed challenging the order passed by the District Munsif, Kumbakonam in I.A.No.1025 of 1993 dated 18.6.1996. 2. The petitioners 1 to 3 before the trial Court are defendants 9 and 10 and third party respectively and they sought to implead themselves as the legal representatives of the deceased 10th petitioner/12th defendant in the final decree proceedings pending before the trial Court. The revision petitioner/1st respondent/plaintiff therein resisted the petition on the ground that since the suit against the deceased 12th defendant abated, the petition filed under Order 22 Rule 4 and Section 151 C.P.C. is not maintainable for the reason that the same was not filed along with a petition to set aside the abatement and that therefore, the same is liable to be dismissed. 3. The learned District Munsif after perusal of the records and upon hearing both sides held that since the factum of death of the 12th defendant was reported by the first defendant by a memo dated 3.9.1993, the petition filed within 90 days thereafter is maintainable and that therefore the petitioners have to be permitted to prosecute their case as the legal representatives of the deceased 12th defendant. 4. The question for determination is whether the impugned order is sustainable in view of the fact that the legal representatives of the deceased 12th defendant have not come forward with the said application without a petition to set aside the abatement as against the deceased 12th defendant. 5. The learned counsel for the revision petitioner has therefore urged that since the 12th defendant died on 14.6.1993 and such factum of death was reported to the Court on 3.9.1993, the petition filed to implead the legal representatives beyond 90 days from the date of death of the 12th defendant without a petition to set aside the abatement is not maintainable in law and that therefore the impugned order is liable to be set aside. 6. On the contrary, the learned counsel for the respondents has argued that since the respondents 1 and 2 herein/9th and 10th defendants in the petition to implead the legal representatives were already made parties to the suit, inasmuch they effectively represented the estate of the deceased 12th defendant, no abatement had taken place in so far as they are concerned. On the contrary, the learned counsel for the respondents has argued that since the respondents 1 and 2 herein/9th and 10th defendants in the petition to implead the legal representatives were already made parties to the suit, inasmuch they effectively represented the estate of the deceased 12th defendant, no abatement had taken place in so far as they are concerned. Similarly, he has contended further that the petition to implead the legal representatives has been presented into the Court within 90 days from the date of knowledge of the death of the 12th defendant by means of a memo dated 3.9.1993 filed by the first defendant to that effect, the suit has not abated as against the 12th defendant. He has argued further that even otherwise, in view of the proposition of law laid down by the Hon'ble Supreme Court in RATNA v. SYNDICATE BANK (1995 AIR SCW 252), an application need not be made within the period of limitation provided under Articles 120 and 121 of the Limitation Act to have the legal representatives impleaded and to set aside the abatement respectively, if one of the defendants died after passing of the preliminary decree whereunder rights of plaintiffs and liabilities of the defendants have been declared and become final and therefore he has urged that in any view of the matter, the impugned order is sustainable in law. The ratio laid down in the decision is as follows:- "A decree passed confers rights and imposes liabilities which are fixed until the decree is reversed or varied in appeal. The preliminary decree declares rights of the plaintiff and liabilities of the respective defendants and they become final. The suit would not abate between the date of preliminary decree and final decree." Therefore, it was held therein that there is no need to make an application within the period of limitation as provided under Articles 120 and 121 of the Limitation Act to bring the legal representatives of the deceased defendant on record and to seek to set aside the abatement after expiry of 90 days. 7. 7. Having regard to the said proposition of law laid down in the decision cited supra and considering the facts and circumstances of the case, this Court is of the view that in the final decree proceedings pending before the trial Court impleading of the respondents 1 to 3 /petitioners as legal representatives of the deceased 12th defendant without an application filed under Article 121 of the Limitation Act to set aside the abatement is valid in law and it necessarily follows that the impugned order has to be confirmed. 8. Thus, the Civil Revision Petition is dismissed, but without costs.