KESHAV DEV Vs. NARAINI

JUDGEMENT

(1.) HEARD learned counsel for the parties on the respondent's application under Order 22 Rule 4 CPC. The sole appellant plaintiff Keshav Dev died on 22. 10. 98. His legal heirs have not been brought on record till date. The respondent Mst. Naraini expired on 11. 11. 93. This fact was within the full knowledge of the appellant but no application was filed to bring the legal heirs of Mst. Naraini or even the LRs of the appellant on record.

(2.) FROM the perusal of the record. I find that appeal was dismissed on 1. 2. 1994 for non prosecution. The learned Single Judge passed the order dt. 1. 12. 94 to the following effect:- " It appears that the appellant is no more interested in prosecuting this appeal. The appeal is, therefore, dismissed in default for non-prosecution and stands disposed of accordingly. "

(3.) IN Amba Bai (supra), the apex court held, as under:- " The various provisions contained in Order 22 CPC explain the consequences of death of parties in a civil litigation. If one of the plaintiffs dies and if the cause of action survives his legal representatives have got a right to come on record and to continue the proceedings. If the sole plaintiff dies and if the legal representatives are not brought on record, the suit will abate and Rule 9 Order 22 CPC specifically prohibits the filing of a fresh suit on the same cause of action. The only remedy available to the legal representatives is to get themselves impleaded and continue the proceedings, if the suit is already not abated, and if abated, they have to file an application to set aside abatement also. "