THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3727 OF 2009 ORDER: 1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed challenging the order dated 18.07.2009 in I.A. No.164 of 2009 in O.S. No.840 of 2002 on the file of the VIII Additional Senior Civil Judge (F.T.C.)., City Civil Court, Hyderabad, whereunder and whereby the application filed by the petitioner under Order I Rule 10 of the Code of Civil Procedure,1908 read with Rule 28 of the Civil Rules of Practice, 1908 (for short, ‘CPC’), to implead her as defendant no.3 in the suit, was dismissed. 2. Heard both sides. 3. The learned counsel for the petitioner contended that since the petitioner has got some semblance of right to safeguard her interest as legal heir of deceased defendant no.2, she may be impleaded as a party to the suit. 4. On the other hand, the learned counsel for the respondents opposed the same on the ground that when the second defendant died, she did not file an application to bring her as legal representative of the second defendant, and that the affidavit filed in support of the petition is silent as to when she came to know about the pendency of the suit after death of the second defendant, and considering these aspects, the trial court rightly dismissed the application, and hence, he prays to dismiss the revision. 5. Order I Rule 10 CPC provides for addition, deletion and substitution of parties. Sub-Sections (1) and (3) thereof deal with substitution or addition of plaintiffs. Sub- Sections (2) and (4) thereof deal with addition, deletion or substitution of both plaintiff as well as the defendant. Sub- Section (5) clarifies that the proceedings against a person added as a defendant shall be deemed to have commenced on the date of service of summons on him. 6. The proposed party is claiming right through the deceased defendant no.2. Such is the case, she ought to have filed a petition under Order XXII Rule 4 CPC to bring her as legal representative of deceased defendant no.2. Not having done so, she cannot be permitted to file an application under Order I Rule 10 CPC. Order I Rule 10 CPC does not need the aid of provisions of Section 5 of the Limitation Act, 1963, whereas an application under Order XII CPC does. Therefore, the proposed legal heir by her application under Order I Rule 10 CPC contrived to circumvent the provisions of Order XXII CPC as well as Section 5 of the Limitation Act, 1963, which cannot be permitted. 7. The learned counsel for the respondents relied on a decision in Morasa Anjaiah v. Kondragunte Venkateswarlu (died) & others,[1] wherein it is held thus: (para 26) “From the above discussion, the following principles can be deduced:-- 1) Where any of the parties to a suit appeal dies during the pendency of the suit appeal, steps to bring his legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure. 2) Where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 2 and the suit/ appeal has abated and/ or where the attempt to have the order of abatement set aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order 1, Rule 10, C. P. C. for impleading the legal representatives of the deceased party by circumventing the provisions of the said Order 22. 3) An application under Order 1, 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) can be filed in a suit appeal to enable the Court 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. 4) An administration/partition suit does not abate as a whole due to not bringing on record the legal representative of a deceased party (co-sharer/ co-owner) as each party is in the position of the plaintiff and the heirs of the deceased co-sharer -- co- owner is a necessary party to the suit, he can come on record on his application under Order 1, Rule 10, C. P. C.” In view of the above decision, the trial court rightly dismissed the application, and there are no grounds to interfere with the same. 8. The Civil Revision Petition is devoid of merit and is, accordingly, dismissed. No costs. --------------------- (K.C.Bhanu, J.) 27.1.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3727 OF 2009 27.1.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3727 OF 2009 27.1.2011 Between: Noorunnisa Yadullahi …Petitioner And Syed Yadullah Shajee Yadullahi & others …Respondents [1] AIR 1993 Andhra Pradesh 156