Rajani Sharma vs State Bank of India and Others

Nisha Gupta, J.—This first appeal under Section 96 CPC has been filed against the judgment and decree dated 7.12.95 passed by Additional District Judge No. 1, Jaipur City, Jaipur in Civil Suit No. 25/1987 whereby the money suit has been decreed against the appellant and the original borrower.

The short facts of the case leading to filing of this appeal are that a suit has been filed by the State Bank of India against original borrower Mr. B.L. Vashistha and against Yogesh Sharma. The present appellants are the legal heirs of Yogesh Sharma. The only contention of the present appellant which leads to filing of this appeal are that specific objections have been raised by the appellant that suit is barred by limitation as the loan has been sanctioned on 27.4.83. Yogesh Sharma has expired on 18.11.83 thereafter on 27.1.87 suit was filed against Yogesh Sharma who was a dead person at that time, the application under O.22 R. 4 CPC has been submitted which was rejected. Thereafter application for impleadment of legal heirs has been made on 28.11.90 which was allowed and service of present appellant has been effected on 25.5.91 and looking to the clear provisions of Order 1 Rule 10 CPC sub clause (5), the suit against the present appellant is time barred as the suit has been filed long back in 1987 and last confirmation letter by the defendant No. 1 was issued on 27.9.86 hence suit has not been filed against the present appellant within three years of the limitation.

Heard the learned counsel for the parties and perused judgment and decree under appeal as well as the original record of the case.

The facts submitted above by the counsel for the appellants are not in dispute that suit has been filed on 27.1.87 and on that date, the appellants were not party in the present suit and they have been implicated party only after the order passed on 4.10.90. The provisions of Order 1 R. 10 sub-clause (5) are clear and it provides in unequivocal terms as follows:

"(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." In view of the above, the proceedings against newly added defendant would deem to begin only on the service of summons.

Counsel for the appellants has also relied upon Lalit Kumar and Others Vs. Jairam Dass and Others, ; Indu Bhushan Chakravarty Vs. Hareram Narayan Deo and Others, ; and State Trading Corporation of India Ltd. Vs. K.V. Vaidyalingam and Others, where provisions of Order 1 Rule 10 sub-clause (5) CPC has been explained and it has been categorically held that suit would be deemed to be instituted on the date of the summons were served on the newly added defendants and it has also made clear the parties impleaded under the provisions have different status and rights. In the present case, the court below has rightly not impleaded the legal representatives under O.22 R. 4 CPC and the original suit was filed against dead person, thereafter present appellants have been impleaded party vide order dated 4.12.90 and service has been effected on them on 25.5.91 and suit was filed on 27.1.87 which was clearly barred by limitation and court below has erred in not framing a particular issue on the point and only a scratchy reference has been made while deciding issue No. 5 as regards the issue of limitation and after relying on Section 128 of the Contract Act, the suit has been decreed without considering the fact that the suit has not been filed against the original surety but it has been filed against a dead person and the present appellants have been made party only in the year 1990 and their service has been effected on 25.5.91 and looking to the provisions of Order 1 R. 10 sub-clause (5) CPC the suit has to be deemed to have been instituted against the present appellants only on 25.5.91 which was hopelessly barred by time and in view of the above, this appeal is liable to be accepted qua the present appellants.

Consequently, the appeal succeeds and is allowed qua the appellants. The judgment and decree under appeal dated 7.12.95 passed by Additional District Judge No. 1, Jaipur City, Jaipur in Civil Suit No. 25/1987 is quashed and set aside qua the appellants.