1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE SUMMONS FOR JUDGMENT NO.33 OF 2009 IN SUMMARY SUIT NO.212 OF 2007 Anil Ghisalal Shah .... Plaintiff Vs. Vijay D. Khadtare & Anr. .... Defendants Shri Ramesh Jain for the Plaintiff. Shri Vinay Bhate for the Defendants. CORAM: A.P. BHANGALE, J. DATED: MAY 07, 2010 P.C: 1. This summons for judgment was taken out in a summary suit under Order XXXVII of the Civil Procedure Code with prayer that the defendants be directed to pay to the plaintiff a sum of Rs.1,55,920.53 paise and further interest on the sum of Rs.80,000/- at the rate of 18% per annum. It is contended on behalf of defendant No.2 that defendant No.1 expired during the pendency of the suit. According to the learned counsel for defendant No.2, information regarding the death of defendant No.2 was given to the Court and the said fact has been recorded in the order dated 24-7-2009. 2 Further, according to the learned counsel, the plaintiff ought to have taken appropriate steps to bring the legal heirs of the deceased defendant on the record but till date no such steps have been taken. 2. The learned counsel has placed reliance in a decision of the Apex Court in Bakshish Singh v. Arjan Singh {1996 (8) SCC 323} to submit that since the legal heirs of the deceased defendant are not brought on the record, the suit has to abate against the said defendant and further against the contesting defendant also. This submission prima facie cannot be accepted as, when there are two or more defendants in a suit and if one of them dies during the pendency of the suit, it is open to the plaintiff to bring the legal heirs or representatives of the deceased defendant on the record within the period of limitation permitted in this regard under Article 120 of the Limitation Act, which runs from the date of getting knowledge of the death of the defendant. Abatement as such is automatic and it is not necessary for the Court to pass any order in this regard. The remedy of the plaintiff to get the abatement set aside if he so desires, to bring the legal heirs or 3 representatives of the deceased defendant on the record. 3. However, in my opinion, the surviving defendant prima facie cannot escape the liability to defend the suit merely on the ground that the co-defendant expired during the pendency of the suit. The question as to whether right to sue survives or not is a matter to be dealt with by the trial Court on merits. 4. Learned counsel appearing for defendant No.2 has prayed for leave to defend on the ground that the deceased defendant was the principal borrower and not defendant No.2 and that defendant No.2 has good grounds to defend the suit in respect of the demand made in the suit as against the surviving defendant, inclusive of liability to pay interest. 5. Under these circumstances, leave to defend the suit is granted, subject to condition that the surviving defendant i.e., defendant No.2 shall deposit in this Court a sum of Rs.l,50,000/- within twelve weeks from today. On the amount being so deposited, the Prothonotary & Senior Master shall invest the 4 same in fixed deposit in any nationalised bank initially for a period of one year and shall keep the same so invested till the final disposal of the suit. The summons for judgment is made absolute accordingly. (A.P. BHANGALE, J.)