Defendant Expired Prior to Suit - Remedy

- Defendant expired - Prior to filing of - Suit......... Remedy..................?

                                      

- Basically in case of death of one of several defendants or of sole defendant after filing of suit procedure / provision of taking legal heir/representative is provided in C.P.C.

- But if in case of death of defendant/defendants prior to filing of suit no provision is provided in C.P.C.

- In the case of death of defendant prior to filing of suit plaintiff may file an application for Impleadment of legal representative of deceased defendant as they are necessary party in order to enable court to effective and completely adjudication , settle all the questions involved in the suit.

-In such above case even application for taking legal heir on record is rejected is no bar to file application for impleadment of legal representative of defendant expired prior to filing suit.

- In such case court to take into consideration bona fide mistake , necessity of party .

- Above application may be filled at any stage of the suit.

- Basically it's not required to mention provisions in the application as per Law. But it's well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice.

= = Relevant Provision = = =

- Order 22 Rule 4 of C.P.C.

- Order 1 Rule 10 of C.P.C.

_ _ _ Relevant Judgement _ _ 

- Pankajbhai Rameshbhai Zalavadiya v/s Jethabhai Kalabhai Zalavadiya (Deceased) Through LRS  & Ors 2018 SAR 1. 

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Decree of Permanent Injunction - Execution........?

... Permanent Injunction Decree and it's execution against legal representative , transfree of Judgement Debtor.......? 

                                     

- Basically decree be executed as per mode provided in order 21 rule 30 to 36 of C.P.C.1908 against judgement debtor , legal representative , transfree of judgement debtor.

- But like maxim " action personalis moritur cum persona " in certain cases  personal action dies with the person has limited application like as actions for damages , assault or other personal injury not causing the death of the party.

- Normally a decree for injunction normally does not run with the land.

- Injunction decree relating to property or right which is heritable and partible may be executed against legal heir of judgement debtor , transfree of judgement debtor.

- Decree for injunction can be executed at any time till it's satisfaction , means it have no limitation.

- In enforcement of injunction decree a judgement debtor can be either be put in civil prison or his property can be attached or both .

= = = Relevant Provision = =

- Section 50 , 146 , Order 21 Rule 16 , 32 , of C.P.C.1908.

- Article 136 of The Limitation Act 1963.

_ _ _ Relevant Judgement _ _ _ _

- Prabhakara Adiga v/s Gowri & Ors  A.I.R.2017 S.C.1061 = 2017 SAR 405.

- Yashodabai G. Naik Gaunekar v/s Gopi M. Naik A.I.R. 2003 Bom 77 = 2002(3) Mh.L.J.801.

- Mohd.Osman s/o Pir Sab v/s Devid (Dr) s/o P.D.F. Sundersingh 2011(3) Mh.L.J.227.

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Mutual Consent Petition & Withdraw of Consent....... Effect

... Divorce petition by mutual consent..... Withdraw of consent by by spouse ..... Effect..... ?

                                 

        

- Consent petition for divorce by parties to marriage  may be filled on ground that they have been living separately for a period of 1 year or more and they have mutually agreed that the marriage should be dissolved.

 

- From the date of filling of petition within 18 months the court may pass decree of divorce but not later 18 months.

- Basically consent of both spouse is required till passing of decree by court.

- But no spouse can unilaterally , willfully be allowed to withdraw consent even on the grounds such as fraud , undue force , representation unless grounds are provided satisfactorily.

- If one party of mutual consent petition acted as per terms and condition of settlement, consent terms then other party is not liberty to withdraw consent without reasonable, sufficient ground, reason.

- In such case rule of estoppel is applied for equity , fairness and aid the administration of justice.

= = Relevant Provision = = =

- Section 13(B) of Hindu Marriage Act 1955.

_ _ _ Relevant Judgement _ _ _ _

- Rakesh P. Sainani v/s Mrs. Bhavna R. Sainani 2008(6) Mh.L.J.853.

- Anil Kumar Jain v/s Maya Jain A.I.R.2010 S.C.229=2009 SAR 942.

- Prakash A. Kalandari v/s Janhavi P. Kalandari 2011(4) Mh.L.J.187.

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Legal - Representative ... Determination...!

Legal Representative......?

                                 

- Means a person who in law represents the estate of deceased person and include any person who inter meddle with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

- When question as to legal representative arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant , such question shall be determined by the court.

- If such question arises before an Appellate court , that court may before determining the question , direct any subordinate court to try the question and to return the records with evidence if any recorded at such trial its finding and reasons therefor and Appellate court may take the same into consideration in determining the question.

- Determination of legal representative is a summary procedure which is for limited purpose .

- Such determination will not confer any right to the property which is subject matter of the suit.

- Legal representative is appointed for orderly conduct of the proceeding. 

- Such determination could not take away for all times to come the rights of a rightful heir of the deceased in all matters.

- Such determination does not operate as res-judicata.

- A person who represents estate of deceased person through legal document like will...............Etc may apply for it. 

- Limitation for taking Legal representative on record 90 days.

- After above period 60 days is limitation for setting aside abatement.

- After above period Delay will start.

- No period of limitation for bringing Legal heirs on record in Execution of Degree or Order ( means Darakhast ).

- - - - - Relevant Provision - - - - -

- Section 2(11) , Order 22 Rule 5 , 12 of Civil Procedure Code 1908.

- Article 120 , 121 of The Limitation Act 1963.

 _ _ _ Relevant Judgement _ _ _ _ 

Jaladi Suguna (D) through Lrs v/s Satya Sal 

Central Trust & Ors A.I.R.2008 S.C.2866.

- Sudesh Kumar Bansal v/s Krishna Bansal AI.R.2010 S.C.344.

- Dashrath Rao Kate v/s Brij Mohan Srivastava A.I.R.2010 S.C.897.

- Varadarajan v/s Kanakavalli 2020 SAR 388.

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Alienation/Transfer during Injunction - - - - - effect

... Alienation/ Transfer of immovable property during injunction order .......?

                                  

- Basically mere pendency of any suit does not affect alienation/transfer of suit property.

- But any alienation/transfer of suit property in violation injunction order or prohibited order issued by court confers no right , title , interest in the transferee.

- Such transfer is not transfer at all in eyes of law.

- In such transfer transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to suit/proceeding in which injunction/prohibitory  is issued by court

- Such transfer must not be upheld and such transfer is rendered illegal , it is not transaction at all.

=== Relevant Provision ==

- Section 52 of Transfer of Property Act 1882.

- Order 39 of Civil Procedure Code 1908.

_ _ _ _ _ Relevant Judgement _ _ _ _

- Keshrimal Jivji Shah v/s Bank of Maharashtra 2004(3) All.M.R.214= 2004(3) Mh.L.J.893.

- Kachhi Properties , Satara v/s Ganpatrao Shankarrao Kadam and others 2010(5) Mh.L.J.903.

- Prahlad Jaganath Jawale and others v/s Sitabai Chander Nikam and others 2011(4) Mh.L.J.137.

- 

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Transfer/Clubbing-Consolidation of Suits

Transfer of Suit and Clubbing/Consolidation of Suit...

                                     

- Generally court may not transfer suit from one court to another court.

- In many cases litigants entertain the apprehension that they would not get a fair trial on a flimsy , unreasonable irrational grounds which are not encouraged by the courts in dealing with transfer applications.

- The court requires it's own satisfaction that there are some grounds on which the apprehensions of the litigant may be regarded as reasonable one.

- The court has to take into consideration that not only the litigant but also the public at large must have the necessary and implicit faith in in the system of administration of justice.

- Clubbing or Consolidation  of   suits may be done by court in which all suits are connected with each other.

- Clubbing/Consolidation done to avoid conflicting judgements on same issues and also to save time , costs , repetition , of procedures.

===== Relevant Provision ===

- Section 24 , 25  & 151 of C.P.C. 1908.

_ _ _ _ _ Relevant Judgement _ _ _

- Crulshank Co. Ltd. v/s B.D.A.Ltd.& ors 1993 Bom.CJ 633.

- Mahabir Prasad  Sing v/s M/S Jacks Aviation Pvt. Ltd. A.I.R.1999 S.C.287.

- M/S Chitivalada Jute Mills v/s M/S Jaypee Rewa Cement A.I.R.2004 S.C.1687.

- Mahalaxmi Coop.Hous.Soc.Ltd. & Etc. v/s Ashabhai Atmaram Patel (D) Tr.Lrs. & Ors A.I.R.2013 S.C.961.

-B.Santoshamma &/Anr v/s D.Sarala & Anr 2020 SAR 1131.

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