Case Note & Summary
The present appeal arises from an order dated 6th October 2023 passed by the Trial Court in Notice of Motion No. 1975 of 2022 in Suit No. 8582 of 1992. The suit was filed by the respondent, M/s. Bal Enterprises, a registered partnership firm, seeking specific performance of a contract against several defendants, including Dr. Arvind Sitaram Gokhale (original Defendant No. 6). During the pendency of the suit, Dr. Arvind Sitaram Gokhale died, and his heirs and legal representatives (the appellants) were brought on record. The appellants filed Notice of Motion No. 1975 of 2022 under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, seeking interim relief to protect their rights in the suit property. The Trial Court rejected the notice of motion solely on the ground that the application was taken out by Defendant No. 6(a) and was not maintainable. Aggrieved, the appellants preferred the present appeal. The High Court considered the issue of maintainability of the application by the legal representatives. The court held that the appellants, as heirs and legal representatives of the deceased defendant, stepped into his shoes and were entitled to maintain the application under Order XXXIX Rule 1 and 2 CPC. The court noted that the suit had not abated and the appellants were already on record. The trial court's rejection on the sole ground of maintainability was erroneous, and the matter was remanded back to the trial court for consideration of the notice of motion on merits. The appeal was allowed, and the impugned order was set aside.
Headnote
A) Civil Procedure - Maintainability of Interlocutory Application - Order XXXIX Rule 1 and 2 CPC - Heirs and Legal Representatives - The court held that an application under Order XXXIX Rule 1 and 2 CPC filed by the heirs and legal representatives of a deceased defendant is maintainable, as they step into the shoes of the deceased defendant and are entitled to seek protection of their rights in the suit property. The trial court erred in rejecting the notice of motion solely on the ground that it was filed by Defendant No. 6(a) without considering the merits. (Paras 1-6) B) Civil Procedure - Substitution of Parties - Section 146 CPC - Abatement - The court noted that the appellants, being heirs and legal representatives of the original defendant No. 6, were already on record and the suit had not abated. The application under Order XXXIX Rule 1 and 2 was maintainable as they claimed interest in the suit property. (Paras 3-5) C) Specific Performance - Suit for Specific Performance - Rights of Legal Representatives - The court observed that in a suit for specific performance, the legal representatives of a deceased defendant have a right to defend the suit and seek interim protection, as the decree may affect their rights in the property. (Paras 4-6)
Issue of Consideration
Whether an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, filed by the heirs and legal representatives of a deceased defendant, is maintainable when the suit is for specific performance of a contract and the original defendant died during the pendency of the suit.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 6th October 2023, and remanded the matter back to the Trial Court for consideration of Notice of Motion No. 1975 of 2022 on its own merits, in accordance with law. The court directed that the notice of motion be decided afresh without being influenced by the earlier order.
Law Points
- Order XXXIX Rule 1 and 2 CPC
- maintainability of application by legal representatives
- Section 146 CPC
- Section 50 CPC
- abatement of suit
- substitution of parties
