Kedarnath Sharma S/O Shri ... vs Ummed Kushwah
2022 Latest Caselaw 6558 MP

                                     1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                               SA No. 1860 of 2018
(KEDARNATH SHARMA S/O SHRI VISHARAM SHARMA (DEAD) THR LRS RAJENDRA SHARMA AND OTHERS
                            Vs UMMED KUSHWAH AND OTHERS)

Dated : 02-05-2022
      Shri N.K. Gupta, learned senior counsel with Shri Sarvesh Sharam, learned

counsel for the appellant.
      Shri Anand V. Bhardwaj, learned counsel and Shri Abhishek Singh, learned
counsel for the respondents.

Heard on IA No.2950/2019, an application under Order 22 Rule 4 of CPC

for bringing legal representatives of deceased respondent No.2 on record and IA No.2951/2019, an application under Order 22 Rule 9 & 11 of CPC as well as IA No.2952/2019, an application filed under Section 5 of Limitation Act for condonation of delay in filing of application under Order 22 Rule 4 of CPC.

Shri N.K. Gupta, learned Senior counsel for the appellant submits that as soon as the fact of death of respondent No.2 came to the knowledge by service report, necessary applications were filed for bringing his legal representatives on record. He further submits that during pendency of first appeal, deceased respondent No.2-Rajesh Kushwaha sold the suit property to respondent No.3 who

was impleaded in the first appeal as respondent No.3. Thus, in fact respondent No.3 has been submitted that in place of respondent No.2 and accordingly, right to sue still survives as against respondent No.3, therefore, applications for bringing legal representatives of deceased respondent No.2 on record deserves to be allowed.

Learned counsel appearing for the respondents have submitted that appellant was well aware of the fact of death of respondent No.2 but he deliberately did not bring his LRs on record and obtained interim stay from this Court. The interim order so passed was against the dead person is nullity as the appeal stood abated at the time of admission and interim stay.

All the applications filed on behalf of the appellant for bringing LRs of deceased respondent No.2 on record are supported by affidavits. This is also undisputed fact that the suit property was sold by respondent No.2 to respondent No.3 during the pendency of first appeal, therefore, it is not so that right to sue

does not survive after death of respondent No.2, therefore, applications are allowed. Delay in filing the application under Order 22 Rule 4 of CPC is condoned. Legal representatives as per application are taken on record. Necessary amendment be carried out within a period of one week.

Vakalatnama on behalf of legal representatives has been filed, therefore, no further notice to them is required.

Also heard on IA No.4665/2021, an application for recalling the order dated 15/03/2019.

Learned counsel for the respondents have submitted that this appeal was admitted on 15/03/2019 whereas respondent No.2-Rajesh Kushwaha had died on 16/11/2018. No application for bringing his legal heirs on record was filed. Hence, appeal stood abated.

The order dated 15/03/2019 has been passed against the dead person when the appeal was already abated, therefore, the same is nullity and deserves to recalled. Learned counsel for the respondents relied upon the judgment of Hon'ble Supreme Court in the case of Gurnam Singh(D) Thr. LRS. & Ors. Vs. Gurbachan Kaur (D) By LRS. & ORs. [(2017) 13 SCC 414].

Shri N.K. Gupta, learned Senior counsel for the appellant submits that second appeal can be admitted without notice to the respondents. In this case also, the appeal was admitted on substantial question of law. Interim protection has also been granted at the time of admission. The fact of death of respondent No.2 was not in the knowledge of the appellant. As soon as this fact came to the knowledge of the appellant, appropriate applications were filed for bringing LRs on record. He further submits that during the course of first appeal, the suit property was purchased by respondent No.3 who was already impleaded by the first appellate Court. Right to sue survives against him. Appeal has not been abated. He is ready to argue the matter finally. Application deserves to be dismissed.

Application for bringing LRs of the deceased respondent No.2 has been allowed today and his LRs have been taken on record. Besides, the suit property has been purchased by respondent No.3 during pendency of first appeal who has already been impleaded in the matter, therefore, right to sue survives against him

and respondent No.1. Accordingly, instant appeal has not been abated. Hence, prayer for recalling of order dated 15/03/2019 is not acceptable.

The legal position as expounded in the above cited judgment is not disputed that if an application for bringing LRs of deceased respondent is not filed within prescribed time limit, the appeal stands abated automatically but in this case, as discussed above, during pendency of the first appeal, the suit property was sold by the deceased respondent No.2 to respondent No.3 in favour of whom right to sue still survives, therefore, in view of provisions under Order 22 Rule 4 of CPC, the appeal does not abate. Thus, in the peculiar situation of this case, the above

cited judgment does not help the respondents.

In view of the above, IA No.4665/2021, an application for recalling the order of admission and interim stay, is dismissed.

Since learned counsel for both the sides are agreed to argue the matter finally, the same be listed in the week commencing 20th of June, 2022 for final hearing.

(SATISH KUMAR SHARMA) JUDGE

rahul

Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676 d0cde4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D 487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910 FD4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2022.05.05 10:50:29 +05'30'