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The obligation of an advocate is to inform the court the death of the party whom he was representing : high court of Calcutta

The obligation of an advocate is to inform the court the death of the party whom he was representing : high court of Calcutta

 

A bare reading of rule 10 A of order XXII  of the code makes it abundantly clear that the obligation of an advocate is to inform the court the death of the party whom he was representing. The said rule does not cast any obligation upon the advocate of the deceased party to inform the court of the particulars of the legal representatives of the set party deceased party. Further no penalty and consequences contemplated under the said rule in default of any failure to comply with the said rule 10 A A of order XXII of the code. It is to be accepted that the contention of the appellent that the provision of rule 10 a of order XXII  one one of the code is mandatory, is upheld by the high court of Calcutta, by the learned bench of Honourable Mr. Justice Ashish Kumar Chakraborty, in the case of Sri Lalit Mohan Ghosh V. Lala Netaji Chandra Babu, S..A. 148 of 2002,

 

FACTS

The appellant, a stranger purchaser of a portion the suit property, (jointly owned by the ancestors respondent nos. 1, 2, 4 and 5), filed the suit claiming partition of the suit property. The respondent no. 3, since deceased, also a stranger purchaser of a portion of the suit property was the defendant no. 3 in the partition suit. In the partition suit, the defendant respondent no. 1 filed an application claiming a decree for pre-emption against of both the stranger purchasers. The learned trial Court rejected the claim of the plaintiff appellant for partition and allowed the prayer of the defendant respondent no. 1 for pre- emption against both the plaintiff appellant and the defendant respondent no. 3, since deceased. However, the learned trial Court did not declare the shares of respective shares of the partition suit. The plaintiff appellant filed an appeal against the judgment and decree of the learned trial Court before the learned first appellate Court.

JUDGEMENT

The court laid out that the present appeal cannot be proceeded with any further and therefore, the entire appeal should be dismissed. The judgment of the learned affirming the judgment of the learned trial Court that the suit property is the “dwelling house” within the meaning of Section 4 of the Partition Act and that the defendant respondent no. 1 has the right of pre- emption against both the stranger purchaser, that is, the appellant plaintiff and the defendant respondent no. 3, is a common judgment and the decree against both the appellant plaintiff and the defendant respondent no. 3 is also common. The court laid out that since the second appeal stood already abated as against the defendant respondent no. 3, the judgment and decree of the learned first appellate Court has not only become final, but also as a necessary corollary, this Court cannot in any manner, modify the said decree directly or indirectly. The decision of the learned Court became binding upon the legal representatives of the deceased defendant respondent the appeal is proceeded with and judgments and decrees of the learned Court is set aside, and there will two contradictory judgement and decree on the same issue, one in favour of the plaintiff appellant and the other against the legal representatives of defendant respondent no. 3. Thus, the second appeal as a whole must fail.

Judgement reviewed by Rani Banerjee

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