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.
