Full Judgment
Writ Petition No :
19307. / 2012 Dr.
Dwarka Prasad versus Rakesh Kumar and others 04.02.2013.
Shri Akshay Sapre for the petitioner.
Shri Sanjay Sarwate and Shri Abhishek Gulati for the respondents.
Challenging an order-dated 21.9.2012 passed by 2nd Additional District Judge, Khandwa in Civil Appeal No.6- A/2012, petitioner has filed this writ petition.
Petitioner is defendant in the suit, which was filed by plaintiffs/respondents 1 and 2.
In the said suit, one Smt.
Santosh Bai was impleaded as defendant No.3(A).She expired on 9.12.2002, but her legal representatives were not brought on record.
However, without bringing the legal representatives of Late Smt.
Santosh Bai on record, the suit was decreed vide judgment and decree dated 22.9.2011.
It is the case of the petitioner that the decree in question is joint and inseverable and, therefore, a decree against a dead person was not maintainable.
Petitioner has preferred a FiRs.Appeal, which is still pending.
But when notice was issued to defendant No.3(A).a report was received that she has expired.
Accordingly, petitioner filed an application under Order XXII Rule 9 of the Code of Civil Procedure seeking dismissal of the suit on the ground that as the legal representatives of Late Santosh Bai were not brought on record, the suit stood abated and the decree deserves to be set aside and the appeal consequently allowed.
However, it is the grievance of the petitioner that vide order- dated 21.9.2012 - Annexure P/1, the petitioner has been 2 Writ Petition No :
19307. / 2012 Dr.
Dwarka Prasad versus Rakesh Kumar and others directed to bring the legal representatives of the deceased defendant No.3(A) on record.
It is the case of the petitioner that the effect of this order would be that petitioner who is Co.defendant in the suit, is directed to bring the legal representatives of deceased defendant No.3(A) instead of the original plaintiffs, and this is not permissible under Order XXII Rule 9 CPC, therefore, petitioner is before this Court.
Having heard learned counsel for the parties, I see much force in the aforesaid objection of the petitioner.
The question as to whether the suit itself stood abated and could be decreed was a matter which requires primary consideration and when the petitioner had filed the application under Order XXII Rule 9 CPC for dismissal of the suit as having been abated and seeking setting aside the judgment and decree in the pending appeal, the Court should have decided the application at the very outset before directing the petitioner to bring the legal representatives of deceased defendant No.3(A) on record.
Even though a perusal of the order-dated 21.9.2012 - Annexure P/1, as pointed out by learned counsel for the petitioner, goes to show that arguments on the application under Order XXII Rule 9 is still pending, but subsequently there is a direction for impleading the legal representatives of deceased defendant No.3(A) on record.
It seems that the direction has been passed without taking note of the legal requirements.
In view of the above, learned court below where the appeal is pending, is directed to decide the application under Order XXII Rule 9 of the Code of Civil Procedure, in 3 Writ Petition No :
19307. / 2012 Dr.
Dwarka Prasad versus Rakesh Kumar and others accordance with law before proceeding with the suit and till orders are not passed on the said application, no direction to implead the legal representatives shall be given.
With the aforesaid, the petition stands disposed of.
Certified copy as per rules.
(RAJENDRA MENON) JUDGE Aks/-