Case Note & Summary
The case involves a Civil Revision Application filed by Anuradha Vasantrao Ghorpade, the legal heir of Vasantrao Tatyaso Ghorpade (deceased), challenging an order dated 9th October 2015 passed by the Court of Civil Judge, Junior Division, Ichalkaranji, in Final Decree Proceedings No.12 of 2005. The applicant had filed an application at Exhibit-45 to bring her name on record as the legal heir of her husband, who was a party to the proceedings and died on 6th May 2007 during the pendency of the final decree proceedings. The respondents opposed the application on the ground that the proceedings had abated against the deceased husband, and unless the abatement was set aside, the application to bring the legal heir on record was not maintainable. The trial court accepted the respondents' contention and rejected the application. In the revision, the applicant's counsel argued that final decree proceedings are akin to execution proceedings, and as per the law laid down by the Supreme Court in V. Uthirapathi v. Ashrab Ali, AIR 1998 SC 1168, and the provisions of Order 20 Rule 12 of the Code of Civil Procedure, 1908, the provisions of Order 22 Rules 3, 4, and 8 are not applicable to execution proceedings. Therefore, the trial court erred in holding that the abatement must be set aside before bringing the legal heir on record. The court agreed with the applicant's submissions, set aside the trial court's order, and allowed the application at Exhibit-45, directing that the applicant's name be brought on record as the legal heir of the deceased.
Headnote
A) Civil Procedure - Final Decree Proceedings - Execution Proceedings - Applicability of Order 22 CPC - The court considered whether final decree proceedings are akin to execution proceedings and whether the provisions of Order 22 Rules 3, 4, and 8 of the Code of Civil Procedure, 1908, apply to such proceedings. The court held that final decree proceedings are as good as execution proceedings and that the provisions of Order 22 Rules 3, 4, and 8 are not applicable to execution proceedings. Therefore, the legal heir of a deceased party can be brought on record without first setting aside the abatement. (Paras 6-7) B) Civil Procedure - Abatement - Setting Aside Abatement - Requirement for Bringing Legal Heir on Record - The court examined whether an application to bring the legal heir on record in final decree proceedings requires a prior application to set aside abatement. Relying on the Supreme Court judgment in V. Uthirapathi v. Ashrab Ali, AIR 1998 SC 1168, the court held that no such application is necessary, as the provisions of Order 22 do not apply to execution proceedings. The trial court's order rejecting the application was set aside. (Paras 6-8)
Issue of Consideration
Whether the provisions of Order 22 Rules 3, 4, and 8 of the Code of Civil Procedure, 1908, regarding abatement, apply to final decree proceedings, and whether a legal heir can be brought on record without first setting aside the abatement.
Final Decision
The court allowed the Civil Revision Application, set aside the order dated 9th October 2015 passed by the trial court, and allowed the application at Exhibit-45, directing that the applicant's name be brought on record as the legal heir of the deceased Vasantrao Tatyaso Ghorpade in Final Decree Proceedings No.12 of 2005.
Law Points
- Final decree proceedings are akin to execution proceedings
- Order 22 Rules 3
- 4
- and 8 CPC not applicable to execution proceedings
- Legal heir can be brought on record without setting aside abatement
