JUDGMENT
Devinder Gupta, J.
(1) In the suit for winding up of the affairs of a dissolved partnership and rendition of accounts which was filed in the year 1982, a preliminary decree was passed on 10.5.1985 and it was directed that accounts have to be gone into and the assets and liabilities of the partnership distributed.’ It was in that context that issues were framed on the same day.
(2) It was during pendency of the proceedings for taking of the accounts and distribution of the assets and liabilities that an application (IA 7461/87) was Filed by one Vinay Kumar Mahajan (hereinafter referred to as the application) under Order 22 Rule 10 of the Code of Civil Procedure (for short ‘CPC’) for being substituted in place of the plaintiff on the basis of an agreement dated 10.2.1987 that he had become absolute assignee of the entire share of the plaintiff and thus had a right to ebe substituted in place of the plaintiff. The application was opposed by the defendants and it was dismissed on 31.10.1990. An appeal was preferred by the applicant against this order, namely, Fao (OS) 210/90. Plaintiff was also arrayed as one of the parties in the appeal. On 2.11.1990, the plaintiff expired. On 1.10.1992, on the statement made before the appellate court that no application had been filed in the suit for bringing the legal heirs of the plaintiff on record, the suit would stand abated on the expiry of 90 days of the death and since suit had abated it will be a futile exercise to decide the appeal, lhc same was dismissed as infructuous. This order was passed on 1.10.1992m the appeal.
(3) Before the aforementioned order was passed dismissing the appeal as infrcutuous, a statement was made in the suit on 20.12.1990 on behalf of counsel for t plaintiff Mr. R.L. Gupta that the plaintiff had expired and an application to bring on record the legal representatives had been Filed. In view of this statement the suit was directed to be posted before the Deputy Registrar on 5.2.1991. On 5.2.1991 Ia l(13′)8/90, which was presented by the applicant on 24.11.1990 under Order 22 Rule 3 Cpc for bringing on record the two sons of the plaintiff on record as the legal representatives was taken up and a notice was directed to be issued for 14.5.1991 to the proposed legal representatives of the deceased plaintiff as also to the defendants through their counsel, although Mr. Sudhbir Nandrajog, Advocate for defendant No.1 was present and his appearance was recorded before the Jt. Registrar. No proceedings took place on this application on 14.5.1991 and 11.9.1991. On 12.3.1992 again a notice was directed to be issued on this application to the proposed legal representatives and to the defendants through their counsel for 30.7.1992 and since notice could not be issued for want of process fee, therefore, fresh notice was directed to be issued. In the meanwhile, as noticed above, aforementioned order came to be passed in the appeal, which had been preferred by the applicant.
(4) Ia 8074/92 was preferred by the legal representatives of defendant No.2 and by defendant No.3 on 14.5.1992. This application was taken up on 20.5.1992 and notice of this application was directed to be issued for 11.8.1992. In this application, a prayer had been made by. the defendants that the receiver be directed to pay the amounts standing to the credit of the partnership as on 31.3.1991 and a direction be issued to the receiver to continue to pay the amounts, that may be credited to their respective accounts on Finalisation of accounts on 9.12.1992 and thereafter till the pendency of the procedings. It is pertinent to mention here that in this application, moved on 14.5.1992, no reference was made to the application, which had already been made by the applicant under Order 22 Rule 3 of the Civil Procedure Code or of the fact that the plaintiff had expired. On 11.8.1992 when Ia 8074/92 was taken up it was noticed that the plaintiff had expired and an application under Order 22 Rule 3 of the Cpc, being Ia 11398/90 had been Filed staling therein that Subhash Mathur and Shiv Narain Mathur are the sons of the deceased and they be ordered to be brought on record as the legal representatives in place of the plaintiff. Copy of Ia 8074/92 was supplied to Mr. Sham Kishore, advocate. This application was directed to be posted on 19.10.1992. On 19.10.1992 both applications Ia 8074/92 and 11398/90 were taken up and were adjourned to 10.3.1993. It is before this date that order was passed in appeal on 1.10.1992.
(5) Ia 2835/93 was Filed by defendants on 16.10.1992 with a prayer that since an order had been passed in appeal staling that suit had abated, a direction be issued to the receiver not to act as such. This application was also taken up on 10.3.1993.
(6) In the meanwhile, two fresh applications were moved by the applicant. Ia 6484/93 has been preferred by the applicant under Order 22 Rules 3, 4A, 5, 9 & 10 of the Civil Procedure Code and Ia 6485/93 is under Order 22 Rule 9 of the Civil Procedure Code read with Section 5 of the Limitation Act. In these applications, the applicant has stated that on 10.2.1987 the plaintiff had executed an agreement assigning his interest/share of assets and liabilities in his favour. It is also stated that he had moved an application under Order 22 Rule 10 Cpc, which was dis missed by the learned single Judge against which an appeal was preferred by him. The same was dismissed as infructuous on an erroneous assumption that no application had been preferred in the suit for bringing on record the legal representatives of the plaintiff. This statement made before the Division Bench was factually incorrect and appeal could not have been dismissed. It is also stated that in the meanwhile application for bringing on record the legal representatives, Ia 11398/90 was taken up which was still pending. The applicant has alleged that he was a partner of partnership Firm under the name and style of K.C. Vanaspati, Jammu. Certain rights were relinquished by the partnership in favour of the applicant by a relinquishment deed dated 3.3.1993. The partnership Firm K.C. Vanaspati had also purchased by a registered agreement property known as Regal Building East consisting of Regal Cinema, Standard Restaurant and other establishments and offices. After relinquishment deed had been executed on 3.3.1993 it was presented for registration before the Sub Registrar, Jammu, who accorded approval on 4.3.1993 resulting in registration of relinquishment deed. All documents and other connected papers of various properties and business had been kept in the registered office of K.C. Vanaspati. At the time of segregation of those documents, on or about 4.7.1993, the applicant came in possession of a registered Will of late Shri Sri Narayan Baralia, the plaintiff, registered in the office of the Sub Registrar, .New Delhi on 10.2.1987. Registered Will revealed that the same had been attested by two sons of late Shri Sri Narayan Baralia and the same had also been registered in the office of the Sub Registrar on 10.2.1987. Though an application had been made by the applicant to bring on record the two sons of the plaintiff as legal representatives, but on the basis of the Will, registered on 10.2.1987, all rights, title and interest of the deceased plaintiff in the subject mailer of suit stood devolved upon the applicant, therefore, the applicant in the two applications prayed for setting aside the abatement, if any, condoning the delay in moving the application for setting aside abatement and for being brought on record as the legal representatives of the deceased plaintiff. Notice of these applications was directed to be issued to the two sons of the deceased and also to the defendants.
(7) There is yet another application moved by the applicant. Ia 10549/92 moved by the applicant under Order 22 Rule 10 of the Civil Procedure Code read with Rules 3, 4A, 5 & 9 is to bring him on record as legal representatives, on the basis of the agreement dated 10.2.1987, alleging that appeal had been got dismissed by incorrectly staling the facts that no application was pending disposal for bringing on record the legal representatives. As such, keeping in view the totality of circumstances, the applicant deserves to be brought on record as an assignee of the deceased plaintiff-
(8) No separate reply to Ia 11398/90 has been preferred on behalf of defendants. On behalf of defendants a statement was made on 28.7.1993 that Ia 2835/93 be read as reply to this application. Reply has been preferred by defendants to IAs 6484/93 and 6485/93 and similarly separate reply on behalf of defendant No.2 has been preferred to Ia 10549/93. The applications have been opposed on the ground that since no application to bring on record the legal representatives was preferred within the period of limitation by the legal heirs, suil stood abated. No separate order was required to be passed in that behalf by the learned single Judge and since suil stood abated applications preferred by applicant Vinay Kumar Mahajan are not maintainable. They also denied the allegation that the plaintiff S.N. Baralia ever transferred his share/right, title and interest in partnership to the applicant.
(9) I heard learned counsel for the parties and have gone through the entire record. It is pertinent to notice an important fact that despite service of notices on the two sons of the deceased plaintiff, they have failed to put in appearance or to contest the application moved by Vinay Kumar Mahajan. It is also pertinent to mention that agreement entered into between Vinay Kumar Mahajan and the plaintiff on 10.2.1987 was not disputed by the plaintiff during his life time when the applicant had applied for being brought on record under Order 22 Rule -10 of Civil Procedure Code on the basis of application moved in that behalf, namely, Ia 4761/87. Plaintiff Shri Sri Narain Baralia was the sole plaintiff in the suit, who expired on 2.11.1990. An application under Order 22 Rule 3 of Civil Procedure Code (IA 11398/90) was moved within the period of limitation on 24.11.1990. The court record further reveals that the defendants had knowledge of the Filing of this application. It was in the presence of the counsel for the defendant that an order on this application was passed on 5.2.1991. On 11.8.1992 also counsel for defendant No.2 was present, when this fact was noticed that application to bring on record legal representatives of the plaintiff was pending. In these circumstances applicant’s version that on 1.10.1992 appeal was dismissed as infructuous observing that no application to bring on record legal representatives had been Filed, was on the basis of a wrong assumption of facts. Application in fact was pending disposal, which fact also Finds mention in the order passed on 10.3.1993. The First application Filed within period of limitation was by the applicant to bring on record the two sons of the deceased. The subsequent two applications, Ia 6484/93 and 6485/93 arc preferred by the applicant to bring him on record on the basis of a will. The last application, Ia 10549/93 under Order 22 Rule 10 of Civil Procedure Code by the applicant is to order substitution of his name on the basis of agreement dated 10.2.1987.
(10) There is no force in the submission made on behalf of learned counsel for the defendants that the suit stood abated and applications are not maintainable. As a matter of fact no order is recorded in the suit that it stood abated. No order as such need be passed for abatement, since abatement is automatic in the event of non Filing of application within period of limitation to bring on record the legal representations. Observations made by the Division Bench while dismissing the appeal of the applicant as infructuous, as noticed above are based on incorrect information supplied to the court. It was on wrong assumption of facts stated on behalf of the defendants before the Division Bench that the order came to be passed. An application in fact had been moved by the applicant to bring on record the two sons of the deceased plaintiff on record as the legal representatives.
(11) It is not in dispute that the two sons are the only natural heirs of the deceased, who have not cared to contest the applications moved by the applicant. The applicant was an interested party in the proceedings for more than one reason.. He had already shown his interest in proceedings, when he applied for substitution (IA 7464/87). This application was dismissed on 31.10.1990. An appeal against this order was pending and it was during the pendency of the appeal that the plaintiff expired. As such the applicant was an interested party and could have moved an application to bring on record the legal representatives of the plaintiff. In Union of India v. Ram Chander (deceased) through his legal representatives, it was observed that procedure laid down in Rules 3 & 4 of Order 22 of Civil Procedure Code requires an application for making legal representatives of the deceased plaintiff or defendant, as party to the suit. It does not say who is to present the application. Ordinarily it would be for the plaintiff to move the application to avoid the abatement of the suit, as by the abatement of the suit the defendant would stand to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant.
(12) In the instant suit since application had been made in time by an interested person there is. no question of abatement. The application is now being disposed of by this order. It was during pendency of this application that the applicant has prayed that instead of the two sons he be brought on record on the basis of a Will or in the alternative on the basis of the agreement dated 10.2.1987.
(13) Since preliminary decree has already been passed and it is a question of taking a stock of assets and liabilities, there is no manner of doubt that right to sue would survive. There can also’ be no dispute that on the basis of the agreement also, the applicant is an assignee of the interest of the deceased, so far as the assets and liabilities in the partnership are concerned. The claim to be brought on record on the basis of the Will has not been challenged by the two sons and rightly, so since both of them are the attesting witnesses. The applicant as such is entitled to be brought on record.
(14) In view of the above, all the applications are disposed of. The applicant Vinay Kumar Mahajan is ordered to be brought on record as a legal representative of S.N. Baralia the plaintiff. Necessary correction be made in the cause title and amended memo of parties be filed within a week.
IA8074/92
(15) By this application direction has been sought for release of the amount standing to the credit of the partners. On 21.11.1990 an order was passed in Ia 8897/88 that half of the amount standing to the credit of partners be paid to them in terms of order dated 12.3.1990 passed in Ia 8956/87 and 8896/88. There is no dispute that as per receiver’s report No.22 there is considerable amount shown credited to various partners as on 31.3.1994. There is also no opposition to this appiciation. Following the earlier orders passed on 12.10.1990 and 21.11.1990 it is directed that half of the amount standing to the credit of the partners be paid to them.
(16) Application stands disposed of.
(17) A copy of this order be given to Mr. Jain, the Receiver Dasti. Suit 1370/82
(18) List in court for further directions on January, 1996.