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2013 DIGILAW 2246 (RAJ)

Nemi Chand v. Hira Lal

2013-12-11

ARUN BHANSALI

body2013
JUDGMENT 1. - This second appeal is directed against the judgment and decree dated 3.12.2010 passed by District Judge, Merta whereby the first appeal filed by Nemi Chand against judgment and decree dated 24.10.2007 passed by Civil Judge (Junior Division), Merta was rejected. 2. The appeal has been preferred by the legal representatives of the said defendant Nemi Chand. When office raised objection about the cause title not tallying with the first appeal, an application under Order 22, Rule 3 read with Section 151 CPC for taking the legal representatives of Nemi Chand on record has been filed. It is inter alia indicated in the said application that Nemi Chand, the sole defendant in the suit and appellant in the first appeal had died on 15.1.2010 and an information to this effect was given to the counsel, who was representing Nemi Chand before the first appellate court. However, the application in this regard was not submitted and the appeal, without bringing on record the legal representatives of the appellant Nemi Chand, came to be dismissed and therefore, the applicants i.e. legal representatives of deceased Nemi Chand be taken on record. 3. A reply to said application has been filed by the respondent inter alia raising objections about maintainability of the said application and submitting that the appeal itself is not maintainable and therefore, the same deserves to be dismissed. 4. Having considered the submissions and the record of the case it is apparent that Nemi Chand, the appellant before the first appellate court had died on 15.1.2010 and the appellate decree came to be passed by the first appellate court on 3.12.2010. 5. The provisions of Order 22 CPC are applicable when the death, marriage, transfer etc. takes place during the pendency of the proceedings and the application is required to be made before the court, where the proceedings are pending, at the time when the death etc. takes place. Besides the above, in view of the fact that the no application was filed for bringing on record the legal representatives of deceased appellant Nemi Chand within the time prescribed for the said purpose, the first appeal itself stood abated, as the abatement is automatic on expiry of period of limitation within which the application is required to be made. Besides the above, in view of the fact that the no application was filed for bringing on record the legal representatives of deceased appellant Nemi Chand within the time prescribed for the said purpose, the first appeal itself stood abated, as the abatement is automatic on expiry of period of limitation within which the application is required to be made. The present application under Order 22, Rule 3 CPC is not maintainable and the same, therefore, cannot be entertained and is consequently rejected. 6. In view of the fact that apparently the appeal itself had abated before the same came to be decided by appellate judgment and decree dated 3.12.2010, the present appeal at the instance of the legal representatives of the appellant before the first appellate court, who were not brought on record before the first appellate court cannot be maintained and same is also, therefore, liable to be dismissed. 7. However, it would be open for the legal representatives of deceased Nemi Chand to take appropriate proceedings before the first appellate court, which passed the appellate judgment and decree dated 3.12.2010 in accordance with the law. 8. Accordingly, this second appeal along with the stay application is dismissed.Appeal dismissed. *******