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Judgment
The petitioner has an injunction in its favour against sale of the deceased respondent’s property in Goa. The injunction was modified subsequently
to the extent of permitting the heirs of the deceased respondent from selling the property but keeping the proceeds thereon in a separate account till
the issues in the suit are resolved.
Learned counsel appearing for the petitioner prays for further orders in terms of Order XXII Rule 4(4) of The Code of Civil Procedure, 1908 which
permits a Court in fit circumstances from exempting the plaintiff from the necessity of substituting the legal representatives of the defendant where
such defendant has failed to file its written statement or has failed to appear and/or contest the hearing of the suit. Counsel places a certificate from
the Department dated 16th September, 2020 which records that the defendant herein was served and an order of a learned Single Judge dated 13th
November, 2017 which directs that the suit should proceed as an undefended suit. Counsel further places Section 213 of The Indian Succession Act,
1925 under which no right of an executor or a legatee can be established in any Court unless a Court of competent jurisdiction has granted probate of
the Will under which the right is claimed. It is submitted that since in the present case the deceased was a Parsi, exception to Section 213 under sub-
section (2) would not apply.
Learned counsel appearing for the executor and one of the legatees of the Will seeks time to respond to the prayer made by the petitioner on the
ground that the petitioner was aware of the death of the defendant in the present case. Counsel relies on The Indian Succession Act, 1925 to submit
that he has certain rights as an executor of the Will.
Upon hearing learned counsel, this Court is of the view that Order XXII Rule 4(4) gives a discretion to the Court in fit circumstances to exempt a
plaintiff from the rigours of substituting the legal representatives of the deceased defendant in the event the defendant has not filed its written
statement or contested the hearing of the suit. The provision proceeds to entitle the Court to pronounce judgment in such case against the said
defendant regardless of the death of such defendant as if the judgment was pronounced if the defendant had not died. Clause 4 of sub-section (4) of
Order XXII has a definite connection with Clause 5 which presumes that the plaintiff was unaware of the death of the defendant and was unable to,
by reason of such ignorance, to make an application for substitution of the legal representatives of the defendant.
The crucial factor in the present case is that the plaintiff was aware of the defendant’s death which would be evident from an exchange of
messages on the WhatsApp messaging/media between the concerned parties. Moreover, Clause (ii) of sub-section (2) of Section 213 of The Indian
Succession Act, 1925 which deals with a Will made by a Parsi and serves as an exemption to the applicability of Section 213 where the immovable
property is outside the ordinary original civil jurisdiction of this Court. The property in the present case is located in Goa and hence it is arguable
whether the executor can be pinned down to the requirement of Section 213 in the present case.
For the above reasons, this Court is disinclined to allow the prayer of the petitioner in terms of prayer (d) of the application which is for granting leave
to proceed with the suit for exempting the petitioner from the necessity of substituting the legal representatives of the respondent. This Court is also of
the view that permitting such a prayer at this stage would grant unilateral rights in favour of the petitioner which cannot be the case once the executor
of the respondent has appeared and contested the proceedings by filing a separate application which is pending for consideration.
However, since the interim order, as modified by the order dated 26th July, 2021, is due to expire on 6th August, 2021, the interim order is extended
for a further period of four weeks from date.
Let GA No. 2 of 2021 be listed along with the present application. The executor is directed to file its affidavit within two weeks from date; reply
within a week thereafter.
The prayer (d) to the present application will be considered after affidavits.
List this matter on 24th August, 2021.