IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 OP(C).No. 876 of 2010(O) ------------------------ ( OS.371/2009 of MUNSIFF COURT, NORTH PARAVUR) .................... PETITIONERS ------------------------------- 1. SATHEESAN, S/O. KATTUNGAL ACHUTHAN, AGED 60, RESIDING AT CHERIYAPADATH,CHERAI, PALLIPURAM VILLAGE, KOCHI TALUK. 2. SUBASH, S/O. ACHUTHAN, AGED 56, KATTUNGAL HOUSE, CHERAI, PALLIPURAM VILLAGE, KOCHI TALUK. 3. K.A.SANTHA @ SANTHADEVI, D/O. KATTUNGAL ACHUTHAN, AGED 51, RESIDING AT "LAKSHMI", CHERUPULLY LANE, KALOOR, KOCHI-17. BY ADVS. SRI.T.B.THANKAPPAN SMT.K.G.SEENA SRI.T.T.HARIKUMAR RESPONDENTS: ---------------------- 1. JACOB @ YACOB, S/O. KUNJI PAUL0, AGED 73 , MULERIKKAL HOUSE, CHERAI, NOW RESIDING AT ANTHAPER GARDEN, BANK JUNCTION, ALUVA-683101. 2. M.P. PAULOSE, S/O. KUNJI PAULO, AGED 86 MULERIKKAL HOUSE, CHERAI, PALLIPURAM VILLAGE, KOCHI TALUK, PIN-683514. 3. M.P. VARGHESE, S/O. M.P.PAULOSE, AGED 56, MANAGER (ADMINISTRATION),TREASURY DEPARTMENT, THE FEDERAL BANK LTD., 1ST FLOOR, FEDERAL TOWERS, MARINE DRIVE KOCHI-31. 4. M.P. PAUL, S/O. M.P. APULOSE, AGED 52, MLERIKKAL HOUSE, CHERAI, PALLIPURAM VILLAGE, KOCHI TALUK-683514. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.876 of 2010 --------------------------------------- Dated this 26th day of November, 2010 JUDGMENT Additional defendant Nos.5 to 7 impleaded as per Ext.P6, order dated October 22, 2010 on I.A.No.1994 of 2009 in O.S.No.371 of 2009 of the court of learned Munsiff, North Paravur is the petitioner before me. The challenge is to Ext.P6, order of impleadment. Petitioners are legal representatives of deceased defendant No.4 who is an assignee of a portion of the suit property from some of the defendants in the suit. Respondent No.1/plaintiff claimed that the suit property originally belonged to his father and based on a power of attorney allegedly executed by the father some of the defendants executed partition deed No.8 of 1970 and later, there was an assignment in favour of deceased defendant No.4 as per document No.118 of 1960. Respondent No.1 wanted a declaration that registered power of attorney No.19 of 1959, partition deed No.8 of 1970 and sale deed No.118 of 1960 (the later in favour of defendant No.4) are invalid and not binding on the suit property and for partition of the suit property ignoring the said documents. In the course of the suit it was revealed that O.P(C).No.876 of 2010 : 2 : defendant No.4 had expired even before institution of suit. Thereon, respondent No.1 filed I.A.No.1994 of 2009 to implead petitioners as legal representatives of deceased defendant No.4. They resisted the application on various grounds including that deceased defendant No.4 had assigned property to certain other persons during his life time and at any rate the suit is barred by limitation. It was also contended that the suit so far as it was filed against defendant No.4 is a nullity since defendant No.4 had expired much prior to the institution of the suit. Learned Munsiff passed Ext.P6, order stating that since the suit is for partition, legal representatives of deceased defendant No.4 are also to be impleaded and to avoid multiplicity of proceedings and in the interest of justice the application is being allowed. Learned counsel contends' placing reliance on the decision of the Delhi High Court in Pratap Chand Mehta Vs. Smt. Krishnan Devi Mehta (deceased by Lrs.) (AIR 1987 Delhi 267) that so far as defendant No.4 is concerned, suit must be treated as a nullity and hence impleadment is not permissible. 2. I have gone through the decision in Pratap Chand Mehta Vs. Smt. Krishnan Devi Mehta (deceased by Lrs.) (supra) and the decision of the Supreme Court in Hira Lal O.P(C).No.876 of 2010 : 3 : Patni Vs. Sri. Kali Nath (AIR 1962 SC 199) referred to therein. The Delhi High Court held that where a suit is filed against a dead person it is a nullity and that plaintiff cannot be allowed subsequently to amend the suit and substitute legal representatives in place of the sole defendant. With respect I am unable to agree to that view. The suit can be continued against the legal representatives from the day an application to incorporate their names as defendants in the suit is filed, subject to the law of limitation. The Andhra Pradesh High Court in Khaja Begum Vs. Gulam Mohiuddin and Ors. (AIR 1976 Andhra Pradesh 65)has held that in a suit instituted against the sole defendant who was found to be dead even before suit, his legal representatives can be brought on record in the same suit subject to the law of limitation as on the date they are sought to be impleaded in the suit. The application for impleadment of legal representatives can be taken as one for correction of proceeding under Sec.153 of the Code of Civil Procedure, to remove the dead person from the array of parties and to bring the legal representatives in his place. I am inclined to agree with that view. O.P(C).No.876 of 2010 : 4 : 3. Now the situation in this case is still better for, it is only one of the several defendants who was dead as on the date of suit. The legal representatives of deceased defendant can be brought on record (See Kannangara Ismail Vs. Palayat Kappadakka Pavu Amma and Ors. (AIR 1955 Madras 644) and Musammat Ashgari Bibi Vs. Shamal Kumar Basu Mullick and Ors. (AIR 1986 Calcutta 227) Since death was prior to the suit question of abatement or application of any of the provision of Order XXII of the Code does not arise. Learned counsel is therefore correct in contending that Order XXII of the Code has no application. But a wrong labelling of the application is irrelevant. I.A.No.1994 of 2009 can be treated as one under Sec.153 or under Order 1, Rule 10(2) of the Code for correction of the proceedings, to remove deceased defendant No.4 from the party array and to proceed against impleadment of his legal representatives. 4. Now the question is whether application could have been allowed. It is not disputed that sale deed was executed in favour of deceased defendant No.4 in the year 1960 based on a power of attorney allegedly executed by the father. Question whether respondent No.1 is entitled to reliefs on various grounds O.P(C).No.876 of 2010 : 5 : taken up in the plaint is a different matter. If petitioners have a contention that the suit is barred by limitation it is open to them to contend so in their written statement. Here the claim of respondent No.1 that the power of attorney and the sale deeds referred to in the plaint are not binding on him for reasons stated therein. It that contention is accepted, deceased defendant No.4, assignee as per document No.118 of 1960 can only be treated as co-owner stepping into shoes of his assignors. In that view of the matter I do not find reason to interfere with the order of impleadment. But I make it clear that it is open to the petitioners to take up appropriate contentions as regards limitation or other pleas available to them. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-