S. Sundaresa Mudaliar vs Mayavaram Financial Corporation Ltd. and Others

S. Mohan, J.—O.S. No. 37 of 1970 was preferred by the first respondent therein (Mayavaram Financial Corporation Limited) against the

first defendant, the borrower, from the Chit fund and the second defendant his surety. On 10th February, 1971 there was a consent decree. Even

earlier to this decree, on 12th January, 1971 itself the second defendant had died. Properly speaking, there fore, there could not be any valid

consent on behalf of the second defendant. However, I.A. No. 461 of 1972 was filed under Order 6, Rule 17, Civil Procedure Code, to amend

the cause title and to implead the legal representatives of the second defendant as parties to the suit and the decree so as to make it binding on

them. LA. Nos. 1637 to 1640 of 1973 were also taken up to set aside the abatement, to bring on record the legal representatives and also to

condone the delay under Order 22, Rule 9, Civil Procedure Code. Curiously enough in none of those interlocutory applications, the legal

representatives were impleaded as respondents. Whatever that may be, I.A. No. 461 of 1972 had been allowed the effect of which would be to

substitute the legal representatives in the place of the second defendant to the decree dated 10th February, 1971. Aggrieved by this order, the

present revision has been preferred. It is needless for me to mention that this substitution cannot straightway be done so as to affect the rights of the

legal representatives since, as noted above even as early as 12th January, 1971 the second defendant had died and therefore, there cannot be a

valid consent on his behalf. The propel procedure would be to implead the legal representatives and to afford them an opportunity to contest the

suit on merits. But the Court below has not adopted that procedure. Therefore, the order of the Court below is set aside and the revision petition

will stand allowed and the matter will be remanded. With regard to the delay in setting aside the abatement, I think this is eminently a fit case in

which the Court should come to the rescue of the petitioner plaintiff (respondent-here-in). Therefore, it will condone the delay and implead the

legal representatives and proceed to try O.S. No. 37 of 1970 on merits. There will be no order as to costs.