1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.26/2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Shri G.R. Syed h/f Shri Zareefa A- Almodi Advocate for petitioner. Shri AJ.H. Deshmukh, Advocate for respondents no.1 and 3. ........................... [CORAM : K.U. CHANDIWAL, J ] DATE : 05th FEBRUARY, 2010. PER COURT : 1 Heard. 2 The grant of application in terms of Ex. 49 by learned Presiding Officer in R.C.S. No. 55/2006 allowing bringing legal representatives of deceased defendant no.1 on record is assailed by legal heirs of original defendant no.1. 3 The factual matrix indicates that Sk. Faridkhan the defendant no. 1 expired on 2nd September, 2007. 2 Purshis of his death was communicated by the learned counsel on 27th December, 2007. Thereafter, the application below Ex. 49 was moved incorporating therein that from the date of knowledge, names of legal representatives of the defendant no.1 be brought on record by carrying necessary amendment. Mr. Syed submits that this exercise is contrary to the settled position of law. 4 The learned judge considered other two applications below Ex. 59 and below Ex. 62 moved before the learned judge. The application below Ex. 62 in terms of Order XXII Rule 4 of the Code of Civil Procedure by the legal representatives of defendant no.1 Faridkhan. Though Mr. Sayed has repeatedly contended that Order XXII Rule 4 of the Code of Civil Procedure requires an application for first pleading to get the abetment set aside then followed by application for bringing 3 legal representatives, it is not so adhered by the plaintiff and consequently an illegality has surfaced. 5 The learned counsel for legal representatives has taken recourse to the judgment in the matter of Smt. Jayalaxmi Janardhan Walawalkar and others versus Lalchand Laxmichand Kapasi and others 1998(4) Bom. C.R. 665. It was case in which instead of adopting recourse in terms of Order XXII Rule 4, the plaintiff therein conspicuously took recourse to Order I Rule 10 of the Code of Civil Procedure, added to it Section 151, this was deprecated by this Court. 6 No such eventuality is surfaced in the present proceeding for bringing legal representatives. Subject of challenge dated 21st January, 2008, in clear tone indicate to bring legal representatives of defendant having got knowledge thereof on 27th December, 2007. Non-filing of so called 4 application for setting aside abetment, will not have value to be coined as in terms of Order XXII Rule 5, the knowledge of death is also important. The knowledge of death of Faridkhan having got to the plaintiff on 27th December, 2007, his application was certainly within limitation of 90 days. No question of taking recourse to Article 120 of limitation Act. 7 The order to bring legal representatives of defendant no.1 on record, does not require any interference. It is just and legal. Rejected. [ K.U. CHANDIWAL, J ] tsk/cra26.09