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2014 DIGILAW 458 (CAL)

Shib Nath Banerjee v. Dayamoyee Devi

2014-05-15

DEBANGSU BASAK

body2014
Judgment Debangsu Basak, J. The suit was for partition of two immovable properties. A preliminary decree was passed in the suit on July 10, 2002. The Defendant No. 1 died on June 14, 2006 and the Defendant No. 3 died on February 2, 2012. The plaintiff applied for recording the death of the deceased defendant and for setting aside abatement and consequential amendment to the plaint by the present application. It was contended on behalf of the plaintiff that, the death of the deceased defendants were required to be recorded. Amendments consequential to the death of the defendants were required to be made in the plaint. The defendants were not prejudiced in the event the amendments were allowed. Since the preliminary decree was passed in the suit prior to the death of the deceased defendants the question of limitation did not arise. It was also however submitted that, there was some delay in making filing the application for amendment and that the plaintiff has explained such delay. On the question of limitation reliance were placed on All India Reporter 1948 Calcutta page 363 (Bhusan Chandra Mondal v. Chhabimoni Dasi & Ors.) and Indian Law Reporter 1995 Volume 1 Calcutta page 406. The application was contested by the Defendant No. 4. It was contended on behalf of the Defendant No. 4 that the delay in making the application in respect of the Defendant No. 1 was eight years and for the Defendant No. 3 was two years. The factum of death of the Defendant Nos. 1 to 3 was known to the plaintiff. The plaintiff did not explain the delay. The carriage of proceeding was on the plaintiff. The plaintiff did not take any step in the suit subsequent to the ex parte preliminary decree. The pendency of the suit was preventing the defendant from receiving his rightful share in the suit property. I have considered the rival contentions of the parties and the materials on record. The suit was for partition of two immovable properties. A preliminary decree in the suit was passed on July 10, 2002. The Defendant No. 1 died on June 14, 2006 and the Defendant No. 3 died on February 2, 2002. I have considered the rival contentions of the parties and the materials on record. The suit was for partition of two immovable properties. A preliminary decree in the suit was passed on July 10, 2002. The Defendant No. 1 died on June 14, 2006 and the Defendant No. 3 died on February 2, 2002. In an appeal arising out of orders passed in the suit the death of the Defendant No. 1 was noted and the heir of the deceased Defendant No. 1 who was not on record was allowed to be substituted in the appeal. However, the death of the Defendant No. 1 was not recorded in the suit and such heir was not substituted. In Bhusan Chandra Mondal (supra) it was held that in terms of the language of Order 22 Rule 10 a death occurring after the preliminary decree was governed by such provision and that there was no period of limitation fixed with regard to matters coming under Order 22 Rule 10. The death of the Defendant Nos. 1 and 3 were required to be recorded. The parties were governed by Order 22 Rule 10 and as such the question of limitation did not arise. The deaths occurred subsequent to the preliminary decree. The Defendant No. 4 did not suffer any prejudice. The suit was for partition. The Defendant No. 4 did not take any steps for having himself transposed as the plaintiff for the entirety of the period which the Defendant No. 4 was claiming that the plaintiff did not take any steps. The Defendant No. 4 was also did not bring on record the death of the deceased defendants. In such circumstances the application of the plaintiff is allowed. The death of the Defendant Nos. 1 and 3 be recorded. The plaint be amended as shown in red ink on the copy plaint being Annexure ‘D’ to the application. The department will carry out such amendment within four (4) weeks from the date of communication of this order on them. G.A. No. 1200 of 2014 is allowed without any order as to costs.