THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5632 of 2009 Dated:- 09th November, 2010 Between:- Smt. A.Rangamma and others ..…Petitioners AND M/s.Gramodaya Cooperative Housing Society Limited and others …..Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5632 of 2009 ORDER:- This Civil Revision Petition is directed against the order dated 30.09.2009 passed in I.A.No.1051 of 2006 in O.S.No.1141 of 2002 by the IV Additional Senior Civil Judge, Ranga Reddy District. 2. The facts that lead the petitioners to prefer this petition, in brief, are as follows:- 3. The petitioners herein are the proposed defendant Nos.12, 13 and 14 in the Original Suit. The first respondent herein – M/s. Gramodaya Cooperative Housing Society Limited (hereinafter will be referred to as ‘the first respondent Society’) filed a suit against respondents 2 to 9 herein for specific performance of the agreement of sale. The specific case of the first respondent Society / plaintiff in the Original Suit is that respondents 2 to 9 herein offered to sell Acs.40.00 guntas of land out of the total extent of Acs.40.51 guntas of land situated at Bandlaguda Village, Rajendranagar Taluk of Ranga Reddy District to it at the rate of Rs.20,000/- per acre and that the respondents 2 to 4 herein, i.e. Defendants 1 to 3 in the Original Suit, on their behalf and on behalf of respondents 5 to 9, received a sum of Rs.30,000/- as token advance on 23.03.1982 agreeing to execute agreement of sale in writing and subsequently executed eight separate sale agreements on 30.03.1982 and subsequently received an amounts on 11.09.1982, 27.02.1986 and on 11.11.1992. It is also their case that subsequently, respondents 2 to 9 did not come forward to receive the balance of sale consideration to execute the registered sale deeds and, therefore, they filed a suit for specific performance. When summons were sent to the defendants, the process server filed a report into the Court stating that defendants 1, 2 and 8 died long back. 4. According to the learned counsel for the petitioners, the first defendant died on 03.09.1985, the second defendant died in the year 1989 and the eighth defendant died on 07.11.2001. Subsequently, the first respondent herein filed I.A.Nos.318 and 319 of 2003 before the I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, to bring the legal representatives of the deceased defendants on record under Order XXII Rule 4 C.P.C. The same was dismissed on 16.09.2005 and no revision was preferred challenging the said order and according to the learned counsel for the petitioners, that order became final. Subsequently, the first respondent Society filed I.A.No.1051 of 2006 under Order I Rule 10 read with Section 151 C.P.C. to implead the legal representatives of the deceased defendants as defendants 9 to 11 in the Original Suit. The specific case of the first respondent Society is that they have no knowledge about the death of defendants 1 to 8 and that the other defendants never informed about the same to them and that the said fact was suppressed by the other defendants with ulterior motive. It is also their case that when the petitioners herein, who are the proposed defendants, started claiming the suit schedule property and tried to interfere with the possession of the first respondent Society, the first respondent Society filed an application to implead the legal representatives of the deceased defendants mainly contending that they are proper and necessary parties to the suit. 5. The Court below, relying on the judgment in case between Morasa Anjaiah Vs. Kondragunta Venkateswarlu (died) and others[1] and also the judgment in case between Rasetty Rajyalakshmamma and others Vs. Rajamuru Kannaiah[2], observed that where a suit is filed against a dead person at the time of its institution, it is not void ab initio and that as such, legal representatives can be impleaded even after expiry of limitation for filing the suit if the omission to implead them was due to bonafide mistake. The Court below also held that since the first respondent Society had clearly pleaded that it was not aware of the death of the defendants 1, 2 and 8, and that the other defendants did not inform the death of other defendants to the Society had that it came to know about their death only after the Process Server filed the report into the Court and that there is no limitation to file an application under Order I Rule 10 C.P.C. and that even in the decision in Morasa Anjaiah’s case (1 supra), a Division Bench of this Court held that “the proposition of law laid down is that an application under Order I rule 10 C.P.C. to implead a necessary party (including a legal representative of a deceased party to the suit/appeal which has abated due to not bringing on record the legal representatives of the deceased party) cant be field in a suit/appeal to enable the Court to effectually and completely to adjudicate upon and settle all the questions involved in the suit, provided the proposed party has an independent right or obligation dehors his position as legal representative of the deceased defendant”. Holding so, the Court below allowed the application. 6. Sri Resu Mahender Reddy, learned counsel for the petitioners, raised two points. His submission is that admittedly, the petition filed by the petitioners in I.A.Nos.318 and 319 of 2003 before the I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, to bring the petitioners herein on record as legal representatives of the deceased defendants under Order XXII Rule 4 C.P.C. have been dismissed and the said fact has been suppressed by the first respondent Society. It is also his submission that when the petitions in I.A.Nos.318 and 319 of 2003 filed before the I Additional Senor Civil Judge, Ranga Reddy District at L.B.Nagar, have been dismissed, the first respondent Society cannot bring the Legal Representatives of the deceased defendants 1, 2, and 8 by filing a petition under Order I Rule 10 C.P.C. 7. Per contra, Sri K.Shankaraiah, learned counsel for the first respondent Society submitted that the first respondent Society had no knowledge about the death of defendants 1, 2 and 8 and that it is only after filing of the report into the Court by the Process Server, the first respondent Society came to know about the death of those defendants and that Order XXII Rule 4 C.P.C. would apply only in a case where the party to the suit dies after the institution of the suit and the said provision will not apply to a situation where the suit is filed against a dead person. In support of his contentions, he has relied upon the judgment of this Court in case between Telagareddy Yesu Rama Eswara Prasad and another Vs. Life Insurance Corporation of India, rep. by its Divisional Manager, Rajahmundry and others[3], wherein, it was held that allowing an application by the trial Court under Order I Rule 10 C.P.C. where the defendants died even by the date of filing of the suit summons and that filing of the suit against a dead person without impleading his legal representatives is a bonafide mistake and, therefore, a suit cannot be declared as void ab initio and that omission to implead the other legal representatives, being bonafide mistake, their impleadment subsequently as defendants relates back to filing of suit in view of proviso to sub-section (1) of Section 21 of the Limitation Act. 8. In the light of the above rival contentions, the only point that arises for consideration in this revision is whether the impugned order of the Court below is liable to be set aside. 9. Order XXII Rule 4 C.P.C. reads as follows:- “Where one or two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. 10. Thus, it is clear that Order XXII Rule 4 C.P.C. comes into play only in case of death of one or several defendants or the sole defendant. Thus, it is very clear that after institution of the suit, if one of the two or more defendants dies, then Order XXII Rule 4 C.P.C. will be applicable. Therefore, in the instant case, filing of earlier applications in I.A.No.318 and 319 of 2003 before the I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, by the first respondent Society appears to be a mistake and, therefore, the petitioners herein cannot take advantage of the dismissal of those interlocutory applications. When Order XXII Rule 4 C.P.C. is not applicable to the facts of the case on hand, the earlier order passed by the I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, in I.A.Nos.318 and 319 of 2003 cannot operate as a bar to the first respondent Society in filing a fresh application under Order I Rule 10 C.P.C. In the light of the judgment of this Court in Telagareddy Yesu Rama Eswara Prasad’s case (3 supra), it is clear that an application under Order I Rule 10 C.P.C. is maintainable in such a situation. Since the report of the Process Server is on record that defendants 1, 2, and 8 died even before the institution of the suit and since order XXII Rule 4 C.P.C. is not applicable to the facts of the case on hand, it becomes immaterial whether the said fact has been referred by the petitioners in the petition averments or not. 11. In the light of the above discussion, I do not find any illegality or irregularity in the order passed by the Court below, so as to call interference of this Court by exercising jurisdiction under Article 227 of the Constitution of India. The Civil Revision Petition is devoid of merits and is liable to be dismissed. 12. Accordingly, the Civil Revision Petition is dismissed without any order as to costs. ________________________ Justice B.Chandra Kumar 09th November, 2010 Bvv [1] 1993 (1) ALT 57 (DB) [2] AIR 1978 AP 279 [3] 2010 (1) ALT 51