Appeal by L.R. of missing defendant
Swami Sadashiva Brahmendra Sar
(Querist) 23 February 2011
This query is : Resolved
Suit for cancellation of sale deed was decreed ex party as defendant did not appear. Defendant’s brother filed appeal stating that defendant is missing. Appeal was dismissed on the ground that appellant had no locus standi to file appeal. Dismissing the second appeal, the High Court has held that Cultivatory rights is exercised by appellant only through his brother. Rights of missing brother can not be said to have been devolved on appellant until presumption of death after 7 years and no substantial question of law arises.
Is decision of high Court correct? Has the brother of defendant to wait for 7 years to file appeal and then shall period of 7 years be excluded from the period of limitation?
Amit Minocha
(Expert) 24 February 2011
yes HC is right and limitation would not come in to picture.
M V Gupta
(Expert) 24 February 2011
This is really a rare kind of situation. I do not know whether there is any provision in the CPC to meet such situation. Even if the missing defendant is having children, they may not have any right per se to challenge the decree, except in case the defendant is found dead. What did the defendant's advocate do when the suit was being called for trial?
