Swami Sadashiva Brahmendra Sar (Nil) 23 February 2011

Substatial question of law

Suit for cancellation of sale deed was decreed ex party as defendant did not appear. Defendant’s brother filed appeal stating that defendant is missing. Appeal was dismissed on the ground that appellant had no locus standi to file appeal. Dismissing the second appeal, the High Court has held that Cultivatory rights is exercised by appellant only through his brother. Rights of missing brother can not be said to have been devolved on appellant until presumption of death after 7 years and no substantial question of law arises.

Is decision of high Court correct? Has the brother of defendant to wait for 7 years to file appeal and then shall period of 7 years be excluded from the period of limitation?

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7 Replies

niranjan (civil practice) 23 February 2011

Logically it is incorrect but legally it is correct because right of appeal is statutory right.However brother of appellant if could have shown his status as aggrieved person or interest in the property and yet if the court has not considered it,the judgment is not correct in my opinion. Further I feel that brother should have filed an application u/s 151 and obtained permission to file the appeal would have been better because inthat case it could have been decided whether he is aggrieved personor not. About second question whether period of 7 years could be excluded or not, I feel that it is like minor attaining majority and filing appeal within time so it could be excluded on the strength of the HC order.

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(Guest)

better he must have impleaded himself as the party to the proceedings at the time of appeal. or now file a suit for declaration against the original plaintiff based upon the possession and enjoyment

jeevesh (student) 25 February 2011

my brother.............the best course would have been to file an application for setting aside exparte decree on the ground of absence of original plaintiff and thereof the substitution of new plaintiff as having interst in the said property or as court appointed legal representative of original plaintiff. this fact should have been stirred before the first appeal court and a prayer for restitution of the case should have been made.............the only course that is left is to file writ petition in high court for restituion of first appeal on the lucus standii as legal representatve of the original plaintiff.... i think absence of orginal plaintiff is ground enough for the hc to restitute the first appeal.................

jeevesh (student) 25 February 2011

filing a suit for declaration against the original plaintiff based upon the possession and enjoyment is not advised as the court in which said suit is filed could stay the execution of ex- parte decree............

jeevesh (student) 25 February 2011

O. Mahalakshmi (Law practiece) 25 February 2011

I agree with Niranjan

Jamai Of Law (propra) 28 February 2011

Very informative and value adding post and comments....Thanks

I believe that...now people should include an additional agreement-clause in the sales deeds to be entered into etc...that....

In the case of any party-to-any-such-deeds dies or goes missing while transaction is in progress!................then..........what would be the effect on the deed which isn't complete in all formalities? i.e. half cooked.

Should it be rolled back completely?.............. or

should it be completed by the legal heirs/partys devolved with rights to do so. The legal heirs or those who would be devolved of the rights from the missing/dead party in such deed .... would have have the rights to decide whether to...go ahead with the deed and complete it....or roll back the deed ..... etc if counter party does not object to it etc.

If there are multiple heirs/partys devolved with rights to do so .................. one should have POA.