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Issues involved: Suit for eviction against a deceased person, applicability of Order XXX Rule 10 CPC to a proprietary concern.
Summary: Issue 1: Suit against a deceased person The appeal arose from a suit for eviction filed against three persons, including a deceased individual who was the proprietor of a transport agency. The decree was passed ex parte as nobody appeared on behalf of the defendants. The executing court dismissed the execution petition, stating that the decree against a dead person was a nullity. The High Court allowed the revision, holding that the decree could be executed despite the proprietor's death. The appellant, now a partnership firm, challenged this decision. Issue 2: Applicability of Order XXX Rule 10 CPC to a proprietary concern The appellant argued that a suit against a dead proprietor of a proprietary concern should be considered non-maintainable and the decree a nullity. The respondents contended that Order XXX Rule 10 CPC applied to proprietary concerns, allowing suits without impleading legal representatives. The Supreme Court clarified that a partnership firm and a proprietary concern differ, with the former being governed by the Indian Partnership Act, 1932. Order XXX Rule 1 CPC permits partners to sue or be sued in the firm's name, while a proprietary concern is the business name of the proprietor. Rule 10 of Order XXX applies to proprietary concerns, enabling suits against the proprietor in the business name. However, in this case, where the proprietor had died before the suit and the concern was not in existence, Rule 4 of Order XXX could not be extended. Conclusion: The Supreme Court allowed the appeal, stating that the suit against a deceased person was a nullity and could not be executed. It held that the provisions of Rule 4 of Order XXX CPC could not be extended to such a case. The High Court's judgment was set aside, and the executing court's order was restored.
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