MOHAN M.SHANTANAGOUDAR,J. - (1.) Leave Granted.
(2.) This appeal arises out of the judgment dated 05.03.2014 passed by the Gujarat High Court in Special Civil Application No. 16985 of 2011 dismissing the Special Civil Application filed by the appellant, consequently affirming the order passed by the trial Court rejecting the application filed under Order 1, Rule 10 of the Code of Civil Procedure (hereinafter referred to as the "Code").
(3.) The brief facts leading to this appeal are as under: The appellant filed a suit on 24.06.2008 seeking to set aside a sale deed executed in March 1995 in respect of a parcel of land which was purchased by defendant no. 7. As on the date of filing of the suit, defendant no. 7 was already dead. Upon the report of the process server to this effect, the trial Court on 31.03.2009 ordered that the suit had abated as against defendant no. 7. Initially, the appellant filed an application under Order 22, Rule 4 of the Code for bringing on record the legal representatives of deceased defendant no. 7. The trial Court while rejecting the said application on 09.09.2009 observed thus: "According to the ratio laid down in the above said cases Order 22, Rule 4 of Code will apply only when the party dies during the pendency of the proceeding. Further held that a suit against dead person is admittedly a nullity and therefore, Order 22, Rule 4 cannot be invoked. Further held that the provisions of Order 22, Rule 4 of Code and Order 1, Rule 10 of Code are different and independent. Therefore, according to heirs of deceased defendant, the heirs cannot be joined as party because the suit is filed against dead person. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31.01.2009 and the present application is filed on 20.05.2009. The application is filed for setting aside abatement and to join the heirs in this suit. Moreover, there is no case of the plaintiff that he has no knowledge about the death of defendant No. 7 or he has made inquiry. Therefore, as per the judgment produced by the defendant, the suit against dead person is nullity. Moreover, the plaintiff has not mentioned the provision under which he has filed the present application. Moreover, the plaintiff has remedy against the heirs therefore, no injustice will cause to him. Moreover, there are other defendants on record. Under these circumstances, the application cannot be allowed. Hence, I pass the following order in the interest of justice. ORDER ;