Partition suit
Adv Digamber Dalve
(Querist) 28 October 2010
This query is : Resolved
x filed a suit for partition suit against four brothers. another 3 people were added as a party as necessary party to the suit. The four brothers appeared but failed to file written statements. No. 5 and 6 conducted the matters and court rejected the suit against them on the point of limitation. defendant no.7 failed to appear and accordingly the court further proceeded Ex-party. The court neither allowed suit or dismissed suit against deft. no. 7 In judgement the court is silent about dismissal or allowed of suit against deft. no. 7. During the trial the deft. 7 died and due to lack of knowledge of the said fact the LRs of no.7 were not brought on record. In execution of the said decree the defendent no. 1 to 4 raised the query and the concerned judge said that decree against the dead person is null and void and it is against all defendents. And ask to take steps. I am confused? What is effect of death of deft. no. 7 to my execution. what remedy is available with me to correct the error? please guide me
R.Ramachandran
(Expert) 28 October 2010
You have to file the application for bringing the LRs of Defendant No.7 within 90 days from the date of knowledge of his death. You must convincingly state to the Court why the death of Defendant No.7 was within your knowledge, and when did you actually come to know about his death and under what circumstances. If the court is convinced about your explanation then it would allow you to bring the LRs of Defendant No.7 on record. But you should have a very plausible and good reasons so that the court gets satisfied with the same.
adv. rajeev ( rajoo )
(Expert) 29 October 2010
bring the Lrs. on record by giving resonable grounds to bring the LRs on record after limitation period
s.subramanian
(Expert) 29 October 2010
I disagree with the above views.The judge is right. The impleading cannot be done after the suit is disposed of. The decree against 7th defendant is null and void since he died during the pendency of the suit and his LRs were not brought on record invoking Order 22 of CPC. You cannot levy any execution against the LRs of 7th Defendant now. Nor can they be impleaded in the execution proceedings now under Sec.50 CPC since there is no valid decree for execution against the 7th defendant. But you can file a fresh suit against the LRs of the 7th defendant if not barred by limitation.
Adv Digamber Dalve
(Querist) 30 October 2010
Thanks but my query is with respect to other defendent i.e. only with defts. no. 1 to 4 against whom court granted my claim and other were necessary parties to the suit. I have no claim against them. When i filed execution petition agaist deft 1 to 4 they raised the said query of not bringing LRs on record and pleaded that the decree is null and voild against them also the court is confused and not passing any order. I draw attention of the court towards Order 22 Rule 4 sub rule 3 and told that my suit will abate against the deceased deft only but the court is not convinced. whether i am right or is there any remedy? My Regular Darkast is pending and court is not taking any dicision?
