Case Note & Summary
The case involved an appeal against the order of the High Court at Delhi concerning the execution of a decree in a civil suit. The appellant, Zahirul Islam, sought to stay the execution of the decree on behalf of the deceased Defendant No.2, who had died on February 1, 1995. The High Court dismissed the civil revision petition on the grounds that the deceased defendant had not appeared before the trial court, resulting in ex-parte proceedings during his lifetime. The Supreme Court examined the provisions of Order XXII Rule 4 of the Code of Civil Procedure, 1908, which allows for the exemption of a plaintiff from substituting the legal representatives of a deceased defendant who failed to contest the suit. The court noted that the necessary permission for such exemption was not sought or granted in this case. Consequently, the Supreme Court found that the High Court's order could not be sustained and allowed the appeal, affirming the appellant's right to be brought on record in the suit. The appeal was allowed without costs.
Headnote
A) Civil Procedure - Substitution of Legal Representatives - Requirement of Permission - Code of Civil Procedure, 1908, Order XXII Rule 4 - The court must grant permission for a plaintiff to be exempted from substituting a deceased defendant's legal representative if the defendant failed to contest the suit. The High Court's dismissal of the revision petition was erroneous as no such permission was sought or granted, leading to the appeal being allowed. (Paras 1-4)
Issue of Consideration
Whether the High Court erred in dismissing the civil revision petition without granting permission for substituting the legal representative of a deceased defendant.
Final Decision
The Supreme Court set aside the High Court's order, allowing the appeal and affirming the appellant's right to be brought on record in the suit. No costs were awarded.
Law Points
- Civil Procedure
- legal representatives
- ex-parte proceedings
- stay of execution
- High Court orders
