- (1.) THE petitioner has assailed the order dated 23.7.2003, passed by the Debts Recovery Tribunal, Lucknow in case No.TA 291 of 2002 (Annexure No.2) as also the order dated 7.12.2005, passed by the Debts Recovery Appellate Tribunal, Allahabad in appeal, upholding the order passed by the Tribunal of the original jurisdiction. Briefly the facts of the case are that the respondent No.3, State Bank of India, being plaintiff filed a regular suit before the court of Civil Judge, Lucknow, which was registered as Regular Suit No.215 of 1991 for recovery of a sum of Rs.18,49,822/ - against the respondent No.4, Company as well as its guarantors.
(2.) DURING the pendencey of the suit before the Civil Court two defendants i.e. defendant No.2 Shri B.R.Dubey and defendant No.4 Shri D.R.Dubey died. In the case at hand the controversy relates to the substitution of legal heirs of Mr.D.R.Dubey, defendant No.4, who died on 24th of December, 1997. The learned counsel for the answering respondent submits that the information of death of Shri D.R.Dubey, was conveyed by the other defendants to the plaintiff in Civil Court on 28.1.1998, whereas vide notification dated 7th of April, 1998 the Debts Recovery Tribunal, Jabalpur was created and the jurisdiction of the Civil Court ceased w.e.f. that date, therefore, the Bank moved an application before the Civil Court on 20.7.1998 for transfer of the case to Debts Recovery Tribunal, Jabalpur and the case was transferred. Then again it was transferred to Debts Recovery Tribunal, Allahabad and thus the Bank moved the application for substitution of legal heirs of defendant No.4 on 31.1.2002 before the Debts Recovery Tribunal, Allahabad. The defendants raised objection against the maintainability of the said application being barred by time as according to them the provisions of Order 22 Rule 4 of the Code of Civil Procedure are applicable in case of death of one of several defendants or of sole defendant, for which there is a provision to make legal representation of the deceased as party and to proceed with the suit. However, sub rule (3) CPC provides that where within the time limited by law no application is made under sub -rule (1), the suit shall abate as against the deceased defendant. Order 22 Rule 4 CPC is extracted below: - "4. Procedure in case of death of one of several defendants or of sole defendant. - (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub -rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place] (5) Where - (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the grounds that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved.]"
(3.) HE further submits that under Limitation Act, 1963 the time given to make a party of the legal representative of the deceased -plaintiff or appellant or defendant or respondent, as the case may be, is provided as 90 days from the date of death. Therefore, the application moved by the plaintiff -bank was barred by time. He further contends that Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short Recovery of Debts Act, 1993) provides that the Tribunal shall have power to regulate its own procedure. The Regulations have been formulated and notified, which are called as the Debts Recovery Tribunal Regulations of Practice, 1996. It came into effect on 2.12.1996. Regulation 89 of which confers the power and makes the provisions of Order 22 of the Code of Civil Procedure applicable in so far as moving an application for legal representative of the deceased as party to the proceeding. Regulation 89 is extracted below: - "89.Application for making legal representative of deceased persons as parties to proceedings: - Application by or against legal representatives shall be made within 90 days from the date of death of the party or person concerned and for such purpose the provisions of Order 22 of the Code of Civil Procedure, may as far as may be and with necessary modifications be followed." ;