Legal Question in Real Estate Law in India

The answer to the proposition can be found in Order 22 Rule 4 and 5 of CPC which are as follows:

Rule 22: DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1. Rule(4) says:

a. The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

2. Rule (5) says:

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the court shall in considering the application under the said section 5, have due regards to the fact of such ignorance, if proved.

High Court Amendment- [Punjab and Haryana]

In rule 4, sub rule (3) shall be substituted as follows;

(3) Where within the time limited by law no application is made under sub rule (1) the suit shall not abate as against the deceased � defendant and judgement be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place�.

In rule (4) the following shall be inserted as sub rules (4), (5) and (6) namely;-

(4) If a decree has been passed against a deceased defendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on record, the court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit.

(5) Before setting aside the decree under sub rule (4) the court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit.

(6) The provisions of Section 5 of Limitation Act, 1963 shall apply to applications under sub rule (4)

Moreover, there is a judgment of Supreme Court on this point which is (2005) 11 Supreme Court Cases 582.

Therefore, the decree does not become nullity just because the legal heirs of the dead defendant were not made parties.