RATNA ALIAS RATNAVATI Vs. SYNDICATE BANK
LAWS(SC)-1994-11-57
SUPREME COURT OF INDIA (FROM: KARNATAKA)
Decided on November 24,1994

Ratna Alias Ratnavati Appellant
VERSUS
SYNDICATE BANK Respondents


Cited Judgements :-

SHIRINBANU ABDULRAHEMAN SOUDAGAR AND ORS. VS. GANGAWWA CHANDRASHEKAR HIREMATH SINCE DECEASED [LAWS(KAR)-2013-8-292] [REFERRED TO]
MOST. SANGITA DEVI VS. MOST. MANJULA DEVI [LAWS(PAT)-2015-12-13] [REFERRED TO]
MAKVANA UDAJI JEHAJI VS. MAKVANA PARTHIJI PUNJAJI [LAWS(GJH)-2012-6-90] [REFERRED TO]
MD. KALA RAJA LASKAR VS. MD. ABDUL WAHID BARBHUIYA [LAWS(GAU)-2021-6-8] [REFERRED TO]


JUDGEMENT

- (1.)Delay condoned.
(2.)The father of the petitioner was the 2nd defendant in OS No. 232 of 1986 filed in the court of Civil Judge at Udipi. The suit had been filed under Order 34 Rule 4 for the recovery of the money due under an hypotheca. A preliminary decree was passed in the suit on 28/6/1989 on the basis of a joint memo filed by the parties. Thereafter, Muthu Marakala, the seconddefendant/surety, died. An Application No. 316 of 1991, to pass final decree, when was filed by the plaintiff, it also made an application to bring the petitioner as legal representative of deceased second respondent, which was opposed on the ground that such application was barred by limitation and the preliminary decree, itself, had abated after the expiry of 90 days from the date of death of defendant 2. An objection had also been raised that the petitioner was not liable to pay the amount of the decree unless principal debtor-defendant was proceeded against. That application was allowed by the trial court. On revision, while leaving open the second question, the High court of Karnataka by its impugned order dated 19-4-1994 made in CRP No. 782 of 1994 upheld the order of the trial court.
(3.)Shri Santosh Hegde, learned Senior Counsel for the petitioner, contended that though a preliminary decree had been passed by the trial court, it, by itself, was not executable unless Final decree thereon was passed. In making the final decree, an adjudication on issues which arise, needs to be made. Therefore, the legal representatives of the deceased defendant 2 should have been brought on record within 90 days from the date of his death under Article 120 and if 60 days' time expires after the expiry of 90 days, an application for setting aside abatement under Article 121 of Schedule to Limitation Act, 1963 should have been made. Since such applications had not been filed within the periods of limitation, the preliminary decree itself, stood abated. The trial court and the High court were not right in directing to implead the legal representative of the second defendant. We find no force in the contentions.
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