1978 (1) TMI 141 - HC - Companies Law

Application against deceased dismissed under Order 22; legal reps join individually under Order 1, rule 10.

The court dismissed the application under Order 22, ruling that a suit against a deceased person is void, and no legal representatives can be joined. The ... Nullity of suit filed against a dead person - Striking out wrongly joined party - Impleading legal representatives during pendency (Order 22, rule 4) - Joinder of parties and amendment of plaint (Order 1, rule 10; Order 6, rule 17) - Distinction between death occurring before institution and death during pendency (transfer lis pendens)Nullity of suit filed against a dead person - Distinction between death occurring before institution and death during pendency (transfer lis pendens) - Impleading legal representatives during pendency (Order 22, rule 4) - Application under Order 22, rule 4 is not maintainable where the alleged deceased person had died before the institution of the proceedings. - HELD THAT: - The court distinguished cases where a person dies before institution from cases where death occurs during the pendency of proceedings. Order 22, by its terminology and purpose, applies to succession or transfer which takes place during the pendency of a suit (i.e., transfers lis pendens), and thus permits impleading of legal representatives when the original party dies during the suit. If the person was already dead at the time the suit was instituted, succession had occurred prior to institution and Order 22 does not apply. In such circumstances the original joinder of a dead person cannot be remedied by invoking Order 22 because the provision contemplates substitution during pendency and not substitution for a person who was never a competent party when the suit commenced.Application under Order 22, rule 4 dismissed as not maintainable because the respondent was dead when the proceedings were instituted.Striking out wrongly joined party - Joinder of parties and amendment of plaint (Order 1, rule 10; Order 6, rule 17) - Proper procedural course where a party was dead at institution is to strike out the dead person's name and, where necessary, seek joinder of legal representatives or transferees in their personal capacity under Order 1, rule 10 (or, where applicable, Order 6, rule 17); where the dead person was the sole defendant the suit is a nullity. - HELD THAT: - Where one of several defendants was dead at institution, the deceased's name must be struck out as wrongly joined. If the deceased was a necessary party, the plaintiffs may either amend the plaint or be required to dismiss the suit as contemplated by prior decisions; an application under Order 1, rule 10 can be moved to join transferees or legal representatives in their personal capacity. If the deceased was the sole defendant, the suit is a nullity and cannot be cured by amendment under Order 1, rule 10 or Order 6, rule 17. The court applied these principles to hold that although Order 22 was inapplicable, the question of joining the legal representatives in their personal capacity should be addressed under Order 1, rule 10 in the main proceedings.Name of the deceased to be struck out; impleading of legal representatives, if required, to be effected under Order 1, rule 10 (not under Order 22). The present Order 22 application is dismissed, but appropriate orders will be passed under Order 1, rule 10 in the main case.Final Conclusion: The application under Order 22, rule 4 is dismissed as not maintainable because the respondent had died before institution; the deceased's name is to be struck out and any joinder of legal representatives should be effected under Order 1, rule 10 (or other appropriate provisions) in the main proceedings. Issues:- Application under Order 22, rule 4 and section 151 of the Code of Civil Procedure for impleading legal representatives in a proceeding under the Companies Act, 1956.- Preliminary objection raised by legal representatives regarding maintainability of the petition against a deceased person.- Distinction between filing a suit against a dead person and joining a deceased party in a suit.- Whether legal representatives should be joined under Order 22, rule 4, Order 1, rule 10, or Order 6, rule 17 of the Code of Civil Procedure.Analysis:The judgment deals with an application under Order 22, rule 4 and section 151 of the Code of Civil Procedure in a proceeding under the Companies Act, 1956. The main issue arises from the fact that one of the respondents named in the petition was found to be deceased when the summons were to be served. The official liquidator sought to implead the legal representatives of the deceased respondent. The legal representatives objected, claiming the petition was not maintainable as it was filed against a dead person. The court distinguishes between filing a suit against a dead person and joining a deceased party in a suit. The legal effect of the objection raised by the legal representatives is considered, emphasizing that if a suit is filed against a dead person, it is a nullity, and no legal representatives can be joined.The judgment clarifies the legal position based on precedents, stating that if a suit is filed against a dead person, it is considered void, and no legal representatives can be joined. However, if a suit is filed against multiple parties, one of whom is deceased, the court can strike out the name of the deceased party as they were wrongly joined due to being deceased at the time of institution. In the present case, the court confirms the death of the respondent before the institution of the suit, making it a case where the deceased party's name must be struck out.Regarding joining legal representatives, the judgment delves into the applicability of Order 22, rule 4, Order 1, rule 10, and Order 6, rule 17 of the Code of Civil Procedure. It is highlighted that Order 22 applies when succession or transfer occurs during the pendency of a suit, and since the deceased party was wrongly joined and struck out, the application under Order 22 is deemed not maintainable. The court discusses that if a case is instituted against a dead person as the sole party, even Order 1, rule 10, or Order 6, rule 17 cannot be utilized for an amendment.In conclusion, the judgment dismisses the application under Order 22 but states that orders will be passed under Order 1, rule 10 in the main case for joining the legal representatives in their personal capacity, not as legal representatives. The legal representatives are to be joined in their own right, and their claim in the main case will be decided on its merits. The court emphasizes that the present application cannot be allowed, and it is accordingly dismissed.