implead petition not filed in partition suit

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This topic contains 1 reply, has 2 voices, and was last updated by Dr. Ashok Dhamija Dr. Ashok Dhamija 1 month, 1 week ago.

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  • #2600

    sir,

    1st plaintiff died in the partition suit but legal heirs were not impleaded as parties and not bring on the record..
    is there any effect to that suit…?
    what about his share…?

    Thanks & Regards,
    K.S.REDDY

  • #2611

    The situation mentioned by you is covered under Order 22 Rule 3 of the Civil Procedure Code, which is reproduced below:

    3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.— (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

    (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

    So, in such a case, the suit may abate in so far as the deceased plaintiff is concerned if no application is made to substitute the legal representatives with the time limited by law.

    The legal effect of such abatement is laid down in Order 22 Rule 9 which is as under:

    9. Effect of abatement or dismissal.— (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

    (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement of dismissal upon such terms as to costs or otherwise as it thinks fit.

    (3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).

    Explanation.— Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.”

    Therefore, where such suit has abated with regard to the deceased plaintiff, no fresh suit can be brought on the same cause of action. However, subject to limitation, the legal representatives may apply for an order to set aside the abatement of the suit.

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