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Judgment
Sureshwar Thakur, J.
1.During the pendency of Civil Suit No. 52/1 of 2009 before the learned trial Court, hence occurred, the demise(s) of defendants, namely, Kanwar
Jeotender Singh, and, Kanwar Harinder Singh. Given occurrence of demise(s) of the aforesaid defendants, before the learned trial Court, an
application cast under the provisions of Order 22, Rules 4 and 10 of the CPC read with Section 151 of the CPC, was preferred before it, with prayers
(a) that given assignments ,of the decree(s) rendered in Civil Suits Nos. 75/FT/1/04/02, 76/FT/1/04/02, 30/FT/1/04/01, 35/FT/1/04/01, 74/FT/1/04/02,
34/FT/1/04/01, 27/FT/1/04/01, and 39/FT/1/04/01, being made by the deceased defendants vis-a-vis Shri Om Prakash Sahni and Shri Amit Sahni,
hence, theirs being enabled to represent the estate of the deceased defendants, (b) and, also theirs being construable to be the legal representatives, of,
the deceased defendants, (c) besides the plaintiff/applicant claimed, rendition of an affirmative pronouncement, upon the aforesaid application. Under
the impugned orders, the learned trial Court, declined, the espoused relief(s) to the applicant/petitioner herein, hence, the applicant/petitioner herein
being aggrieved therefrom, has, motioned this Court. The relevant civil suit was instituted in the month of January, 2009, whereas, the apposite
assignment, occurred prior thereto, on 7.2.2008. Nonetheless, the assignees rather permitted the arraying of the assignors, in the array of defendants,
and, also under a general power of attorney executed, vis-a-vis them, by the assignors, arrayed as defendants in the apposite civil suit, rather,
obviously hence proceeded to contest the suit, on their behalf. Nowat, the tenacity(ies) of the disaffirmative pronouncement, recorded, by the learned
Courts below, upon the apposite application, is to be tested, in the light of the aforesaid scenario, besides, in the imminent factum of applicability(ies)
thereof, of the provisions borne in Order 22, Rules 4 and 10 CPC, and, read with Section 151 of the CPC, whereunder the apposite application, as,
instituted, before, the learned trial Court, stood hence cast.
For making an appropriate adjudication, it is also deemed imperative, to extract the provisions borne in Order 22, Rules 4 and 10 of the CPC,
provisions whereof read, as under:- 4. Procedure in case of death of one of several defendants or of sole defendant.-
(1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
(4)The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has
failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be
pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been
pronounced before death took place.
(5) Where,â€" (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the
legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in
consequence, abated, and (b) the plaintiff applies after the expiry of the period specified there for in the Limitation Act, 1963 (36 of 1963), for setting
aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance,
sufficient cause for not making the application within the period specified in the said Act, the court shall, in considering the application under the said
section 5, have due regard to the fact of such ignorance, if proved. 10. Procedure in case of assignment before final order in suit.- (1) In other cases
of an assignment, creation or devolution of any interest during the pendency of a Suit, the suit may, by leave of the court, be continued by or against
the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal there from shall be deemed to be
an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
An analysis of the provisions, borne, in Order 22, Rule 4 of the CPC, makes, apparent revelations, of statutory authorization(s), being bestowed,
upon, the Court concerned, to on demise of the defendant concerned, and, upon, an appropriate scribed motion being made therebefore, hence permit
his proven legal representative(s), to , beget their substitution in his place, given theirs obviously hence representing, the estate of the
deceased defendants concerned. Furthermore, an analysis of the provisions borne in Order 22, Rule 10, of the CPC, unfolds, the trite factum of the
creation or devolution, of interest, during the pendency of the suit, also bestowing, an empowerment, in Court, to permit hence the continuation, of, the
suit, by the assignee or by the persons whereuponwhom, the creation or devolution of interest in the suit property is endowed, and, also a power is
bestowed, upon, the Court concerned, to permit the assignee, whereuponwhom, an interest or devolution, in the suit property, is created to hence seek
his impleadment in the array, of defendant(s).
The aforesaid indepth analysis of the provisions, respectively borne, in, Order 22, Rule 4 of the CPC, and, in Order 22, Rule 10 of the CPC, bring
forth the imminent factum, (a) of the substitution of the defendant, by his legal representative(s), under an order, recorded by the Court concerned,
wherebefore, his demise, occurs, being permissible, only when the defendant concerned hence evidently, expires during the pendency of the suit, (b)
and upon his demise, the right to represent his estate, devolving upon his proven legal representatives, (c) and, besides upon proven occurrence, of
assignment(s), whereunder interest in the suit property, is created, (d) and, upon the assignment provenly occurring, during, the pendency of the suit
also hence empowering the court concerned, to permit the assignee, to seek his impleadment either in the array of the plaintiffs or in the array of
defendants, (e)tritely hence, the substitution of the deceased defendant by his proven legal heirs or creation of an interest in a assignee, has apparently
ought to occur, during the pendency of the civil suit, and, also thereupon alone his proven legal heirs or assignees, are statutorily enabled, to seek their
impleadment, in the apposite array of parties, to the lis.
Contrarily, hereat, dehors, the relevant assignment evidently occurring prior, to the institution of the suit, whereupon, hence though the assignees
were rendered, empowered/enabled, to be arrayed in the apposite array of defendants also hence, were, at the inception, of the lis, hence, enabled to
seek their impleadment, in the array of defendants, (a), given theirs solitarily holding the locus standi, to defend the civil suit, yet, they abandoned or
waived their rights, to contest the suit, and, rather proceeded under a power of attorney bestowed upon them, by the defendant(s) concerned, to hence
defend the latters', in, the apposite civil suit. The aforesaid open abandonment(s), and, waivers, despite, theirs holding the apposite locus standi,
obviously adversarialy swings vis-a-vis them, the aforestated provisions of the CPC, whereunder the apposite application is cast, (b) especially when
as aforesaid all ingredients thereof, are attracted only upon the demise(s) of the defendants, occurring, during the pendency of the civil suit or the apt
assignment, also, occurring during pendency thereof, (c) and, not contrarily, as hereat, with there being an evident pre-suit assignment, whereupon, the
apposite locus, was solitarily vested upon the assignee(s). Pre-suit assignment(s) or creation(s) or devolution(s) of interest, forbids, hereat any
attraction, of the aforesaid provisions of law, whereunder the apposite application is cast, rather reiteratedly, with, the apposite capacity, and, locus, at
the inception of the suit, rather solitarily vesting in the assignees, renders blunted their endeavour, to, beget vis-a-vis them any attraction(s), of the
apposite provisions, whereunder the apposite application is cast. Preeminently also the aforesaid provisions of law, warrant, their attraction at a stage
subsequent to the demise, of, the defendant concerned, and, whereat alone the apposite rights, to, defend, the estate of the deceased, hence, occur,
whereas, attractions thereof are impermissible, upon evident pre existing rights, or his pres-suit rights, to defend, hence, vesting in the defendants, as
evidently hereat.
Be that as it may, the learned counsel appearing for the petitioner, has with vigour contended, before this Court, while alluding to the definition, of
“legal representativesâ€, borne in Section 2(11) of the CPC, provisions whereof read as under:- “(11) ""legal representative"" means a person
who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party
sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;†wherein the phrase,
“legal representative†has been imputed a signification, (a) of its, also including any intermeddler, with, the estate of the deceased, (b) whereupon,
he contends that the assignee(s), also are, within its ambit, hence, construable to be the legal representative(s) of the JDs, and, the impugned order
hence warranting reversal. However, the aforesaid submission has been made by the counsel for the petitioner, without, his making a wholesome
reading, of, the aforestated statutory definition, of, phrase “legal representativeâ€, whereas, upon its wholesome reading, though a legal
representative, also, includes any intermeddler with the estate of the deceased, yet the intermeddler, with the estate of the deceased, carries the apt
signification, (i) of one who subsequent, to the demise of the deceased, is bestowed with the apposite authorization, (ii) and apparently, it does not
include, the apt pre-suit assignee, of the decree, (ii) especially when the latter openly, as hereat, has abandoned his befitting solitary locus to defend the
apposite suit, in the aforesaid capacity. Furthermore, the aforesaid parlance ascribed to the aforesaid phrase, both blends and begets harmony with the
hereinabove extracted statutory provisions, and, hence for promoting harmony inter se them vis-a-vis the parlance, borne by the aforesaid statutory
phrase, this Court concludes, of, it appertaining, to, post demise acquisition(s), and, to not any pre lis acquisition(s).
For the foregoing reasons, the instant petition is dismissed, and, the impugned order is maintained and affirmed. The parties are directed to appear,
before, the learned trial Court on 24th May, 2018. No order as to costs. All pending applications also stand disposed of . Records be sent back
forthwith.