Civil Procedure Code (CPC)

Order i rule 10


Hello All,

In a partition suit, priliminary decree was passed infavor of plaintiffs and the share of plaintiffs and defendants are specified.

In this context, if any one defendant is died before passing of the priliminary decree what is the procedure to be adopted to bring the deceased LR's on record.

If any one of the defendant has died after passing of the priliminary decree what is the procedure to be adopted to bring the deceased LR's on record?


Please advice..

 

Regards,

Jeevan

 
Reply   
 

The solution is to bring the LRs on record through Order 1 Rule 10 C.P.C. In both the scenarios mentioned by you i.e. if the defendant dies before passing of the preliminary decree or after that, an application under the abovesaid provision has to be moved. The passing of a preliminary decree does not mean the suit proceedings have attained finality; it is only an intermediate stage, which is appealable. Thus, the application u/o 1 rule 10 can be moved even after the passing of the preliminary decree. Even if the defendant(s) had died after passing of the final decree, the LRs could be brought on record via O 1 Rule 10, however this time, in the stage of Execution.

Saravpreet Gurna

Advocate

 
Reply   
 


ADVOCATE

Any number of preliminary decrees can be passed by considering the changed/intervening circumstances before passing a final decree.

Petition under order I rule 10 c.p.c. is the solution in both the cases.

For more clarification, you may refer the ruling rendered by Supreme Court in Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. on 12 October, 2011

 
Reply   
 

Sir,

Then the in the above context, if the plaintiff files final decree application he can bring the LRs of the deceased defendant on record, i mean in final decree petition. Now if the LRS of the deceased want to file final decree application, what is the procedure?

My understanding is the final decree petition is filed by plaintiff for their share and the plaintiff added the LR's of the deceased defendant, NOW in the same I.A ie final decree petition can the LR's of the deceased file another IA for their share or they have to file seperate final decree application .

Please correct me..

Regards,

Jeevan


 

 
Reply   
 

 

Sie,

As the first, the LRs of the deceased defendant will have to be brought on record by moving an application u/o 1 rule 10. This provision applies both ways i.e. the plaintiff could use it to bring the LRs of the deceased defendant on record and also the LRs of the deceased defendant can use it to step into the shoes of the deceased predecessor. Thus, the procedure, as asked by you, is to first bring the LRs on record either way and then the final decree shall follow as a natural consequence of the preliminary decree already passed (which of course is appealable). Remember, the application u/o 1 rule 10 can be moved by both the parties.

regards

Sarvpreet Singh Gurna

Advocate 

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

Menu

Post a Suggestion for LCI Team
Post a Legal Query
Civil Litigation Course     |    x