Legal heirs of defendant filled objection on maintainability and execution of suit

by Shivendra Pratap Singh | Jan 10, 2025 | Civil Matters

Legal heirs of defendant filled objection that sir is not maintainable after the death of their father. I filled a suit for the partition of property. During pendency of suit one of the defendants died. Since he was issue less and his wife also died nearly ten years ago I didn’t file an impleadment application to bring his legal heirs on the record. The suit has been decided by the court on merits. When the decree is in the process the legal heirs and his father filled an appeal. The appellate court while admitting the appeal order to maintain the status quo till the further order of the appellate court. The trial court is being precluded to prepare decree till the next order of the appellate court. In the meantime I filled a case in the high court against the order of status quo. That case is pending and notice is issued to the opposite parties.

Now the case is stuck between the decisions of the court. More than one year has lapsed and no decision is passed by the court. I could not understand how to handle my case in the high court. The appellate court is also adamant to proceed further until the decision of the high court.

Asked from: Karnataka

When the defendant died during trial you had to implead legal heirs of the deceased defendant. It was your responsibility to bring necessary parties on the record of the case. Because the necessary part has the right to defend his right. Due to non-impleadment of legal heirs they had refrained from defending their rights. If the legal heirs are not impleaded the suit abates against them. They are not bound to the judgment.

When the legal heirs of the deceased defendant filled the appeal along with the other defendants they have abandoned their right to abatement of suit. When the judgment has been passed against the dead person, his legal heirs should have filed separate applications for abatement. Once they filed a joint appeal they are challenging the impugned order on merits.

Being joint appellants, they are challenging the judgment on merits, it proves that they do not want to seek abatement. Thereafter they cannot invoke order 22 of the code of civil procedure for abatement.

In Kiran Singh vs Chaman Paswan AIR 1954 SC 340 the Supreme Court has held that if a judgment has been passed on merits it shall not be liable to be reversed on mere technical ground if there is no travesty of justice.

Seeking abatement is a technical ground for declaring a judgment null and void so far as it relates to the legal heirs of the deceased defendant. When legal heirs of deceased defendant are challenging that judgment on merits, thereafter, they cannot seek abatement.

If the order of status quo was granted on the basis that judgment was passed against the dead person, that order will not sustain as per the above legal position. You will get appropriate relief from the high court. File listing application and expedite your petition in the high court. For more legal help please visit Kanoon India.

Also read: How to calculate court fees in partition suit

Shivendra Pratap Singh

Shivendra Pratap Singh

Advocate

Advocate Shivendra, practicing law since 2005, specializes in criminal and matrimonial cases, extensive litigatin experience before the High Court, Sessions court & Family Court. He established kanoonirai.com in 2014 to provide dependable and pragmatic legal support. Over the years, he has successfully assisted thousands of clients, making the platform a trusted resource for criminal and matrimonial dispute resolution in India.

Related Matters

Bank refused to obey the order of Lok Adalat

Bank refused to obey the order of Lok Adalat which was passed upon the compromise. There was a dispute regarding the payment of credit card outstanding. The matter was resolved and I deposited the amount fixed by the bank after deliberation. Then the court has…

Subsequent proceedings in arbitration matter

Subsequent proceedings in arbitration matter and challenge of award passed by the arbitrator. I want to challenge arbitral award, so I want to know how to challenge that award? There was dispute regarding enhancement of construction work. The tender was allotted in…

Civil court dismissed suit for want of jurisdiction

Civil court has dismissed suit for the want of jurisdiction and said that the suit should have been filled before the labour court. My claim was to recover money from the sugar factory who has withheld my arrears. The court expressed its view that the subject matter…

Admission in NRI quota can be changed afterwards

Admission in NRI quota can be changed afterwards if the student comes under the scheme of children of Indian workers of gulf countries? I took admission in NRI quota at very high fees. There is a scheme of the government which provides that children of workers of…

Claim related to motor accident in consumer forum

Can I make a claim related to motor accidents in a consumer forum? My father died in an accident due to reckless driving of the car.  He hired that car to travel from our home to Chennai. When the vehicle reached XX the driver stopped the car at the restaurant…

Can I sue a person if the contract is unregistered?

You can sue a person despite that the contract is unregistered. In the prevailing situation you have a right to recover the rent of three months along with interest and also claim damages. This house was let out for three years. If the term of lease is more that one…