suit for declaration and possession

Querist : Anonymous (Querist) 17 April 2010 This query is : Resolved
Dear Experts, in a suit the plaintiff filed suit for declaration of title and possession against 2 defendants. the 1st defendant was set-exparte in the initial stage, the 2nd defendant contested the suit but decree was granted in favour of plaintiff on 08-12-2005. After decree in 2006, the 1st defendant was died leaving his 4 sons and 2 daughters ( the 2nd defendant is one of the daughter of 1st defendant). But the 2nd defendant preferred appeal without impleading the legal heirs of 1st defendant. Now the appellate court asks question for non-impleading of the LR's of the 1st defendant. Is is possible to implead the LR's of the 1st defendant after 2 years of numbering the appeal or contest the appeal only against the plaintiff as the decree and judgment is only against the 2nd defendant. In E.P. the execution court orders for delivery of possession against the 2nd defendant.please solve my query and provide relevant citations

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R.R. KRISHNAA (Expert) 17 April 2010
Impleading a party in appeal is permissible.

Citations:

2002 (2) LW 15

1998 (2) LW 361

I believe that the E.P. is under stay as the appeal is pending.

I suggest you to contest the appeal by impleading the legal representatives as expected by the court. Also note that the newly to be impleaded parties does not take new defence which the deceased(1st defendant) or the 2nd defendant has not taken.

adv. rajeev ( rajoo ) (Expert) 17 April 2010
at any stage party can be impleaded. Let me know whether application is filed to stay the operation of judgement and decree in an appeal or to stay the execution proceedings?

Querist : Anonymous (Querist) 17 April 2010
Dear experts, the appeal was filed against the plaintiff arraying him as 1st respondent and the 1st defendant as 2nd respondent. but at the time of filing the appeal the 1st defendant was no more. the appellant/2nd defendant should add the LR's of 2nd defendant as other respondents, but by mistake the name of the deceased 1st defendant alone arrayed as 2nd respondent, appeal was numbered. while filing stay application, the counsel for the 1st respondent/plaintiff says the court that the 1st defendant was died before filing the appeal and the appellant filed the appeal without impleading the LR's of 1st defendant as respondents so the appeal is not maintenable, so the judge adjourned the case for clarification and stay application was also not adjudicated. how can i save the appeal. the counsel made the mistake of non-joining the LR's of 1st defendant in the appeal, so please guide me to solve the problem

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