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Judgment
L. Narasimha Reddy, J.—The plaintiffs in O.S. No. 546 of 2001 on the file of the XII Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad filed this appeal, feeling aggrieved by the dismissal of the suit, through judgment, dated 20.09.2009. The suit was filed for the relief of cancellation of sale deeds executed by the 3rd defendant, in favour of defendants 1 and 2. In the appeal, this Court passed an interim order restraining the respondents from alienating the suit schedule property. Respondents 1 and 2, in turn, filed an application with a prayer to vacate the interim order. One of the grounds raised by them was that though the 3rd respondent died on 09.10.2006 itself, the appeal was presented on 23.02.2007 showing as though he was alive. The appellants filed a set of three applications for setting aside the abatement caused on account of the death of the 3rd respondent-defendant, for condonation of delay in filing the application and for bringing the legal representatives of the 3rd respondent on record.
Respondents 1 and 2 on the one hand and the proposed legal representatives on the other filed counter-affidavits.
Sri K. Raghuveer Reddy, learned counsel for the appellants, submits that inclusion of the 3rd respondent in the array of the parties was due to inadvertence and in a way, his clients were not aware of the death of the 3rd respondent though they are brothers. The ignorance is said to be on account of the strained relationship. He further submits that the estate of the deceased 3rd respondent is already represented by respondents 1 and 2, being the transferees of the property and strictly speaking, there is no abatement at all. Alternatively, he submits that this Court can take adequate measures in exercise of powers u/s 153 C.P.C. and Section 21 of the Limitation Act. He has placed reliance upon certain precedents.
Sri Muralinarayan Bung, learned counsel for respondents 1 and 2, on the other hand, submits that the very appeal was incompetent and untenable, since one of the parties died by the time the appeal was instituted. He submits that it is just unbelievable that the appellants, who are the brothers of the 3rd respondent, were not aware of the death of the latter. He contends that the plea of the appellants that the deceased 3rd respondent was living separately from 1979 and that they are not aware of his activities is totally unbelievable. He contends that certain documents were executed or signed by the appellants and the 3rd respondent together long after 1979. He too placed reliance upon certain decided cases.
It is not, in dispute that the 3rd respondent died after the that Court rendered its judgment, hut before the appeal was presented. We proceed on the assumption that the appellants were very much aware of the death of the 3rd respondent, by the time the appeal was presented. It needs to be seen as to whether there is abatement of the appeal, and whether there is any incurable defect in the appeal.
The very purpose of bringing the legal representatives on record either in the suit or in the appeal is to ensure that the estate of the deceased party is represented in the proceedings. The death of the 3rd respondent occurred at the intervening stage, namely after the disposal of the suit, but before institution of the appeal. Two options are open to the persons who intend to file the appeal in such cases. The first is to straightaway file an application to bring the legal representatives on record, and the second is to bring the legal representatives on record, and the person as a party and thereafter to file an application under Order 1 Rule 10 C.P.C. The predominant opinion is towards the second.
The suit was filed for declaration to the effect that the sale deeds executed by the 3rd respondent in favour of respondents 1 and 2 are null and void. Respondents 1 and 2 did not dispute the factum of transfer of the suit property in their favour. As a matter of fact, they have filed O.S. No. 304 of 2000 against the appellants herein for partition, on the strength of those very sale deeds. Therefore, the estate of the 3rd respondent vis-�-vis the suit schedule properties is perfectly represented, with the presence of respondents 1 and 2.
In Mohammad Arif Vs. Allah Rabbul Alamin and Others, the Hon''ble Supreme Court took the view that if the transferee of the property is on record, the proceedings do not abate. Relevant portion reads as under:
On the death of Mohammad Ahmed all that was required to be done was that the appellant who was on record should have been shown as a legal representative inasmuch as he was the transferee of the property in question and at least as an intermeddler was entitled to be treated as legal representative of Mohammed Ahmed. He being on record the estate of the deceased appellant qua the property in question was represented and there was no necessity for application for bringing the legal representatives of the deceased appellant on record. The appeal in the circumstances could not be regarded as having abated and Mohammed Arif was entitled to prosecute the appeal.
Similar view was taken by the Hon''ble Supreme Court in P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar and others,
Therefore, the appeal did not abate on account of the fact that the 3rd respondent died by the time it was presented.
It is true that the reasons mentioned in the affidavit filed in support of the applications are too difficult to be taken as true. Being the brothers of the deceased 3rd respondent, the appellants are supposed to aware of the factum of his death. All the same, mere inclusion of the name of the 3rd respondent in the array of the parties in the appeal cannot be said to have resulted in any serious detriment.
In C. Raju and Others Vs. Dinshaji Dadabhai Italia and Another, , a learned Single Judge of this Court took the view that even where a suit is filed against the sole defendant, who was not alive by the time the suit was instituted, the defect can be cured by impleading his legal representatives as parties. It was observed that institution of a suit against a dead person does not result in nullity of the proceedings, and the defect in this regard, is curable. Section 153 C.P.C. also confers ample powers upon the Court in this behalf.
In certain cases, particularly in Karuppaswamy and Others Vs. C. Ramamurthy, , the Hon''ble Supreme Court took the aid of Section 21 of the Limitation Act in matters of this nature. Learned counsel for the respondents submits that the provision deals with suits and not appeals. By referring to the definition of the word "suit" in Section 2(1) of the Limitation Act, he submits that the principle underlying u/s 21 of the Act cannot be extended to the facts of the present case.
Section 21 of the Limitation Act reads as under:
Effect of substituting of adding new plaintiff or defendants:--
(1) Where after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall as regards to him be deemed to have been instituted when he was so made a party.
Provided that where the Court is satisfied that the omission to include a plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
In this regard, it needs to be observed that the Limitation Act has dealt with suits on the one hand, and rest of the proceedings, such as appeals and petitions on the other hand, separately. A close scrutiny, however, presents a different picture. The provisions that govern the suits are stringent, comparable to those that deal with other property, in the context of condonation of delay etc.
When the Parliament has provided a semblance of relaxation in Section 21 of the Act in case of suits, as regards which the principles are stringent, there is no reason why the same analogy be not extended to the appeals, for which the principles of limitation are bit a liberal.
Assuming that there is any impediment for the petitioners to file an application to set aside the abatement and to bring the legal representatives on record, there does not exist any bar for them to file an application to implead the legal representatives of the deceased 3rd respondent. In exercise of powers u/s 151 C.P.C., this Court can treat the present applications under that provision also.
Hence, the applications are ordered and the proposed legal representatives shall stand added as respondents 5 to 8. Pot the appeal for hearing in the first week of November, 2013.