1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2767 OF 2008 Prakash Mahadev Korde .. Petitioner V/s Dilip Digambar Deshpande & Ors. .. Respondents Mr. M.S. Lagu for the petitioner. Mr. Girish S. Godbole for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 28TH JUNE 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 3 March 2008 passed by the Iind Additional Judge, Small Causes Court, Pune rejecting the petitioner’s application for bringing on record the heirs of defendant no.6 – Kesu Yesu Tapkir. 3. The facts are peculiar and are briefly stated below: The petitioner-plaintiff filed a suit bearing Special Civil Suit No. 164 of 1997 (renumbered as Regular Civil Suit No. 3582 of 2000) for specific performance. Five persons were 2 joined as party defendants to the suit. After the said 5 persons, the plaintiff has written figure “6” and has thereafter written the name of Kesu Yesu Tapkir and after his name the plaintiff has written the words “deceased, no heir”. There is some controversy on whether Kesu Yesu Tapkir was at all joined as a defendant or merely his name was written with a remark that he had died without leaving behind him any heir. However, that controversy need not detain us because in my view the trial Judge was right in rejecting the application even if it is assumed that he was made a party to the suit. 4. On 30 January 2008, the plaintiff made an application that he be allowed to substitute the name of defendant no.6 Kesu Yesu Tapkir with the names of his legal heirs. That application was rejected by the learned Judge by an order dated 3 March 2008. That order is impugned in this writ petition. 5. Previously, it was believed that a suit or a proceeding initiated against a dead person was a nullity; as such the heirs of the deceased could not be brought on record under Order 22 Rule 5 of the Code of Civil Procedure (for short “the Code”). In State of Kerala v. Sridevi, (2000) 9 SCC 168, the 3 Supreme Court has held that where an appeal was filed against a person who had died after the suit but before filing of an appeal, the heirs of the deceased respondent could be brought on record under Order 1 Rule 10 of the Code. The Court held that appropriate provisions in such a case would not be Order 22 Rule 5 but would be Order 1 Rule 10 of the Code. As no specific period of limitation is provided for making such an application under Order 1 Rule 10 of the Code, it would be covered by the residuary Article 137 of the Limitation Act, 1963 and the limitation would be 3 years. In the present case, Kesu Yesu Tapkir admittedly had died prior to the suit, i.e. prior to the 1997. The suit was instituted in the year 1997 and the application for bringing the heirs of Kesu Yesu Tapkir was made on 30 January 2000, i.e. after a lapse of 3 years. Therefore, the application was barred by limitation. 6. For these reasons, the Trial Judge was right in rejecting the application. The writ petition is accordingly rejected. (D.G. KARNIK, J.)