Raj Kumar Makkad (Adv P & H High Court Chandigarh) 11 May 2020
Post the relevant facts of the query. Otherwise the provision contained in Section 10 of Indian succession Act is a general provision applicable to alt categories of cases. The provision contained in Order 17 apply to certain classes of suits. One provides a bar against proceeding with the trail of a suit, the other provides for granting of quick relief. Both these provision have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in Section 10 of the Code is applicable to a summary suit filed under Order 37 of the Code, the words "trial of any suit" will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form.
Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Sub-rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner.
Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave, the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code.
P. Venu (Advocate) 12 May 2020
I am completely at a loss to understand the relevance and import of the above posting by Mr. Makkad to the vague and incompresible words "succession by imposter validity undrr 151 cpc" posted by the author.
G.L.N. Prasad (Retired employee.) 12 May 2020
This is the summary I could get from an article in some other forum. (kept as a record for information)
"Order 37 CPC is best suited for cases in which a Defendant does not have a case at all and the Suit is prolonged for years. Also, cases in which loans are taken from Banks and borrowers disappear with no trace, Order 37 is useful as on the basis of loan documents, it is easier to get a decree from Court within a short time and then all that is left for a Bank to do is, to find the Defendant and get the decree executed. In fact, most borrowers, who otherwise are not scared of recovery agents, often offer settlement once they receive a summons and are reprimanded by the Courts."
This is the original query: "succession by imposter validity undrr 151 cpc"
The query lacks details and clarity.
However if the imposter gets such rights of succession through fraudulent means, this is fraud, and the only thing to be proved is that he is not such and such a person and legal heir and infact he is as per public records such person and declared his parents as such.
Definitely the simple issue is whether he is a legal heir or impostor and if the defendant files written statement, the plaintiff can certainly pray for such summary trial. (Very rarely court permitted disposal through summary findings)
Dr J C Vashista (Advocate) 13 May 2020
No information and vague question posted for consideration and forming an opinion.