Order 22 rule 4 and delay application
Querist :
Anonymous
(Querist) 29 January 2020
This query is : Resolved
dear sir my grand father died in the year of 2018 ,,in a coluded partion suit .my grand father made as a party (he is the bonafide purhcaser) summons has not served on him but after his death the plaintiff filed a application under order 22 rule 4 to breing the purchaser Lrs and delay aplication after lapse of 1 year whether it should be filed within 90 days from the date of death.which is barred by limitaion.
whether the application is maintainable?
can i get citations to dismiss the application
Raj Kumar Makkad
(Expert) 29 January 2020
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 15549 OF 2017
Arising Out Of SLP (C) NO. 31212 of 2014
Pankajbhai Rameshbhai Zalavadia ……Appellant
Versus
Jethabhai Kalabhai Zalavadiya (Deceased)
Through LRs & Ors ……Respondents
Raj Kumar Makkad
(Expert) 29 January 2020
“According to the ratio laid down in the above said cases Order 22 Rule 4 of Code will apply only when the party dies during the pendency of the proceeding. Further held that a suit against dead person is admittedly a nullity and therefore, Order XXII Rule 4 cannot be invoked. Further held that the provisions of Order XXII Rule 4 of Code and Order 1 Rule 10 of Code are different and independent. Therefore, according to heirs of deceased defendant, the heirs cannot be joined as party because the suit is filed against dead person. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31.01.2009 and the present application is filed on 20.05.2009. The application is filed for setting aside abatement and to join the heirs in this suit. Moreover, there is no case of the plaintiff that he has no knowledge about the death of defendant No. 7 or he has made inquiry. Therefore, as per the judgment produced by the defendant, the suit against dead person is nullity. Moreover, the plaintiff has not mentioned the provision under which he has filed the present application. Moreover, the plaintiff has remedy against the heirs therefore, no injustice will cause to him. Moreover, there are other defendants on record.
Raj Kumar Makkad
(Expert) 29 January 2020
Subject to the provisions of the India Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
Section 151: Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Section 153: General power to amend – The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
