Vs.

Judges: B.P.JEEVAN REDDY & K.S. PARIPOORNAN, JJ.

Date of Judgment: Mar 10, 1997

Code of Civil Procedure
Abatement of a suit for non bringing legal heirs as parties – Held where a suit stood abated against legal heirs of first respondent and order passed on 2.2.90 reached finality, the order is valid until set aside or annulled in appropriate proceedings and cannot be ignored until legal proceedings taken to avoid it – As long as order stands, suit becomes unassailable – Present suit taken to bring back to life dead suit cannot be revived as it is barred.

The court rejected the chamber summons by a composite order on two different and distinct points — (1) the agreement dated 9.5.1988 entered between the appellants and Indubhushan is void and unenforceable and so, the suit is not maintainable; (2) the amendments sought by the appellants to implead defendants 1(a) to 1(d) as respondents 1 to 4 in place of deceased defendant No.1 and to add the official assignee as a party defendant, were disallowed. The legal effect of the said order is that Suit No.133/89 stood abated against the legal heirs of the first defendant, Indubhushan and the order passed on 2.2.1990 reached finality. It so happened, as a result of the judicial order passed by the court in a proceeding between the parties to this proceeding as early as 2.2.1990. This order is valid until set aside or annulled, in appropriate proceedings. It cannot be ignored. It will have legal effect of its own, until appropriate proceedings are taken to establish its invalidity and to get it annulled by a person entitled to avoid it. The said order stands even today; it has not been set aside. So long as the said order stands, the abatement of the suit has become unassailable in these proceedings. Nearly five years thereafter, the appellants filed fresh chamber summons No.1123/95 in a non-existent suit. No factual plea as such was made to set aside the abatement. The plea in that regard is that by the annulment of insolvency, the abatement of the suit, if any, requires to be set aside as a matter of law. For reasons stated earlier, the abatement of the suit (an independent proceeding), that ensued, cannot be ignored or the proceedings in the suit revived, by the annulment of insolvency, as a matter of law. Moreover, there is inordinate delay, even if such prayer was made in the application. The attempt made in chamber summons No.1123/95 to bring the legal heirs of the first defendant on record, is a futile attempt to bring back to life a suit which no longer existed. The legal effect of the order passed in chamber summons No.769/89 dated 2.2.1990 has resulted in the abatement of the suit against the legal heirs of the first defendant- Indubhushan. In such state of affairs, the fresh chamber summons taken (No.1123/95) in a non- existent suit, is patently barred, unsustainable in law and merits no consideration. In this view of the matter, we affirm the judgments and orders passed by the High Court and no interference is called for in these appeals. (Para 11)