LAW FOR ALL

Or.1, rule 10 is maintainable when defendant's counsel failed to intimate the death of the defendant with in time to court and to the plaintiff : No suit abated totally on the death of one of the defendant while other defendants are on record : or.22, rule 4, 10 A and or.1C.P.C. AND,art.120,121 limitation act and order 1 rule 10 cpc ="The suit was originally instituted by one plaintiff i.e., petitioner herein, against two defendants. When the 2nd defendant died, petitioner took prompt steps by filing I.A.No.810 of 2004 and the legal representatives were brought on record as defendants 3 to 9. The 1st defendant is said to have died on 31.07.2001 long before I.A. No.810 of 2004 was filed. Had the petitioner been aware of the factum of the death of the first defendant, he would have certainly taken steps to bring the legal representatives of the 1st defendant on record. The record discloses that defendants 1 and 2 were represented by the same counsel in the trial Court. Rule 10-A of Order XXII C.P.C. places an obligation on the counsel to inform the Court as well as the other party, whenever his client dies, during the pendency of the proceedings. This Court has taken view in several matters that the limitation to file an application to bring the legal representatives of a party to the suit, on record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under Rule 10-A of Order XXII C.P.C. That having not been done in this case, the proposed respondents cannot resist the attempts made by the petitioner to bring the legal representatives on record, or to implead them as defendants.