* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 5367 OF 1999 IN SECOND APPEAL NO. 524 OF 1998 Shri.Tukaram Mahadu Gaikwad & Ors. ...Applicants V/s. M/s. General Oil Deport, unregistered firm & Ors. ....Respondents. ===== Mr.Vivek Salunkhe h/f.Mr.P.B.Shah, adv.for applicants. Mr.U.A.Marathe,adv.for respondents. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 21ST APRIL, 2009. P.C. : 1. Heard counsel for both sides. 2. This Civil Application for bringing the heirs and legal representatives of respondent no.2 on record, by condoning delay in filing the application and setting aside the abatement of the Second Appeal, is taken out four years after his death. The record shows that respondent no.2 was dead not only at the time of filing of present appeal, but, also at the time of filing of the First Appeal before the District Court. The First Appeal before the District Court * 2 * against respondent no.2 being against a dead person, is as good as no appeal against him. In that case, the present Appeal would be a Second Appeal directly from the decree by the trial court. Therefore, neither the present appeal nor the present application are maintainable. 3. On merits, it is contended in the application that the applicants had no knowledge of death of respondent no.2. It is further complained that the learned advocate appearing for respondent no.2 did not communicate the death of respondent no.2 to the first appellate court or to the applicants as required under Order 22 Rule 10A of CPC. The applicants claim to have come to know about the death of respondent no.2 only after issuance of the court notice in the present appeal. The application however does not specify the date of knowledge. The averments in the application as regards the knowledge of the death and the steps taken for the purpose read as follows : “2....Recently, he came to know about the death of the respondent no.2. Thereafter, he made efforts to get the names and addresses of the heirs and legal representatives of the deceased respondent no.2. After getting the names and addresses, the petitioners have immediately approached his Advocate at Mumbai for bringing heirs and legal representatives of the deceased on record of the Second Appeal.....” 4. The averments are seen to be bald and without any particulars whatsoever. The respondents in their affidavit- * 3 * in-reply categorically aver that the applicants and the respondents being residents of the same locality the applicants were aware of death of respondent no.2. The fact that parties from both the sides are residents of the same locality is not disputed by the applicants. There is also no affidavit-in-rejoinder filed to refute any of the contentions. In that circumstance, it would be difficult to believe that the appellants were unaware of death of respondent no.2 for all these years. 5. Much has been argued about the responsibility of the advocate for respondents under Order 22 Rule 10A CPC in informing the court about the death of respondent no.2. Mr.Salunkhe, learned counsel for the applicants submits that no fault can be found with the applicants in not filing the application for bringing the heirs on record earlier, as the advocate for the respondents had failed in the mandatory duty under Order 22 Rule 10A CPC to inform the court about the death. In other words, what is sought to be canvassed is that unless the information in terms of Order 22 Rule 10A is given to the Court, the applicants are not under obligation to take steps for bringing the heirs on record. Therefore, according to the applicants, it cannot be said that there is delay in filing the application. Mr.Salunkhe relies upon the decision of our High Court in the case of Atchut Upendra Raikar V/s. * 4 * Surya Upendra Raikar (since deceased) through his legal representatives reported in 2006(4)Bom.C.R.page 830, in support of his submission He specifically relies upon paras-7 and 8 therein. 6. The facts of the case in the decision cited are that the application for bringing the heirs on record was filed after the intimation of death of the party to the court as required under Order 22 Rule 10 C.P.C. As there was delay in filing the application, the petitioner had prayed for condonation of delay. The condonation of delay was sought primarily with reference to the fact of intimation of death of the party by her Advocate to the Court. This contention was not considered by the lower court while deciding the application for bringing the heirs on record after condoning the delay and the application was dismissed. It was contended before our High Court that Order 22, Rule 10(A) C.P.C. has nothing to do with the obligation of the parties to the suit to legal heirs of the deceased party on record. In support of the contention, decision of Karnataka High Court in Doddappa Maritammappa Basaput v. Erappa Mudakappa Navalli, reported in A.I.R. 1982 Kant.191 was relied upon. By the said decision, Karnataka High Court had held that “There is nothing in Rule 10-A of Order 22 of the Code, which enables the Court to hold that the * 5 * limitation to file an application to bring the legal representatives of the deceased party on record commences from the date of informing the Court about the death of the party by the counsel representing the said party or to hold that the plaintiff, or the appellant, or the petitioner, as the case may be, who is required to make an application to bring the legal representatives of the deceased party on record within the period prescribed under law, is relieved of the burden to explain the delay in making such application”. Our High Court, agreed with the decision of the Karnataka High Court hold that the decision cannot be construed to lay down the law that Order 22, Rule 10-A has nothing to do with the obligation of the plaintiff under Order 22, Rule 4 C.P.C. Our High Court observed that the said provision is not merely for the sake of intimation to the Court about the death of the parties. It is obviously to facilitate the Court to proceed with the matter in such a way that the proceedings before the Court are not rendered futile nor the Court’s time is wasted as well as that the party to the proceedings are not put to hardship and the Court is able to decide the dispute effectively and pass an order which can be given effect to it without any impediment of the nature of failure on the part of the Court to hear the concerned parties. Being so, it cannot be said that the obligation on the part of the Advocate to inform the Court * 6 * about the death of his party is a mere formality. It is essentially for the benefit of the Court as well as of all the parties to the concerned proceedings”. This decision cannot come to the rescue of the applicant because it is not the case of the applicant that he learnt about the death of respondent no.2 only when intimation of death was given to the Court as required under Order 22, Rule 10-A Code of Civil Procedure. In fact, it is their complaint that such an information has never been given to the Court. It is their case in the application that they learnt about the death of respondent no.2 only when the notices issued by the Court to respondent no.2 returned with endorsement of the death. Therefore, in the instant case, failure on the part of Advocate for respondent no.2 in intimating the death to the Court is of no relevance. Besides, the present application is not for bringing the heirs of deceased respondent no. 1 on record in the strict sense of the term, because as already observed hereinabove at the time of filing of the appeal, respondent no. 2 was no more. The applicant ought to have at the time of filing of appeal itself, impleaded the heirs of respondent no.2 as parties to the appeal. This is not the case where there was an Advocate appearing for respondent no. 2 who had the duty cast upon him under Order 22, Rule 10-A C.P.C. to intimate his death to the Court and he having failed in that * 7 * duty. 7. Applicants claim that they learnt about the death of respondent no. 2 only after issuing of the Court notices. The applicants do not specify the date on which they got the knowledge. It is further claimed that after coming to know about the death, the applicants made efforts to get the names and addresses of legal representatives of deceased respondent no.2 and the present application was filed after getting the said particulars. The application does not mention when the particulars as regards the names and addresses of the heirs were received by the applicants. In the circumstances, it must be held that there is no cause whatsoever made out by the applicants for condoning of delay and allowing the application. [SMT.R.P.SONDURBALDOTA,J]