SARIA BEWA v. BALARAM PUHAN — 1989 DIGILAW 161 (ORI)

P. C. MISRA, J. ( 1 ) THIS revision has been referred to be decided by a Division Bench as it was noticed that there has been divergence of judicial opinion as to whether if no substitution is made on the death of a defendant after the passing of the preliminary decree, the final decree passed would be nullity and whether the executing court can refuse to execute such a decree. The learned single Judge after noticing the aforesaid divergent opinion entertained a doubt regarding the correctness of decision of this Court in the case of Jagannath Samantra v. Sudarsan Das reported in AIR 1961 Orissa 140 and this is how this matter has come before this Bench for hearing. ( 2 ) DEFENDANT 3 in O. S. No. 15/4 of 1951/52 is the petitioner in this revision. The aforesaid suit was filed by the father of the present opposite party 3 for partition of the suit properties in the court of the Subordinate Judge, Balasore. A preliminary decree for partition was passed in the said suit on 12-7-1952. An application was, thereafter filed by the plaintiff to make the decree final. The court started a final decree proceeding on the said application and appointed a commissioner under O. 26, R. 13 of the C. P. C. (hereinafter referred to as the `code') to carry on measurement in order to make partition of the properties according to the rights as declared in the preliminary decree. The Commissioner submitted his report on 21-12-1976. Defendant 2, namely, Gopi Puhan had already expired on 4-11-1976 before the submission of the report by the Commissioner. It appears that the court, was not informed about the death of defendant 2 and consequently the court accepted the report of the Commissioner and passed the final decree on 12-9-1977. It is alleged that the said deceased defendant No. 2 left behind a daughter, namely, Smt. Rambha Mohanty as his sole legal representative. The final decree was put to execution in Execution Case No. 8 /81 by one Balaram Puhan claiming himself to be the adopted son of deceased Gopi Puhan. Notice having been issued under O. 21, R. 22, the present petitioner (defendant 3) appeared and filed an objection under S. 47 read with O. 21, R. 23 of the Code which was registered as Misc. Case No. 189/ 81. Notice having been issued under O. 21, R. 22, the present petitioner (defendant 3) appeared and filed an objection under S. 47 read with O. 21, R. 23 of the Code which was registered as Misc. Case No. 189/ 81. The objection raised against the execution case by the present petitioner was twofold :- (a) Defendant 2 having died by the date of the final decree and his legal representatives having not been substituted it was a decree against a dead man and is, therefore, a nullity. (b) Balaram Puhan is not the son and legal representative of late Gopi Puhan and, therefore, he cannot execute the decree as a decree-holder. By the impugned order, the Subordinate Judge dismissed the said Misc. Case holding that the decree was not a nullity in the peculiar circumstances of the case. He, however, did not record any finding as to whether Balaram Puhan, the person who has filed the Execution Case as decree-holder is the adopted son of deceased defendant 2. ( 3 ) THE learned trial court relied on three decisions of different High Courts, namley, the decisions reported in AIR 1983 Mad 5 (Abdul Azeez Sahib v. Dhana Bagiammal), AIR 1954 Cal 205 (Himangshu Bhusan Kar v. Manindra Mohan Saha), and AIR 1959 Bom 384 (Raddulal Bhurmal y. Mahabirprasad Bisezar Kalwar) in support of the proposition that a decree passed in favour of a dead person is not a nullity as the fact of death was not brought to the notice of the court when it passed the decree. The learned court below has expressed the view that a decree passed in such circumstances is only an irregularity and it cannot have the effect of making the decree void ab initio. Learned counsel for the petitioner has relied on the decision of this Court reported in AIR 1961 Orissa 140 (Jagannath Samantra v. Sudarsan Das) which takes the view that a final decree passed in a partition suit against the defendants, two of whom were dead at the time of passing of the final decree is a nullity. ( 4 ) THE legal jurisprudence uniformly followed in administration of justice in the country is that every person should be given an opportunity of representing his case and to be heard in any judicial proceeding in which his rights are likely to be affected. ( 4 ) THE legal jurisprudence uniformly followed in administration of justice in the country is that every person should be given an opportunity of representing his case and to be heard in any judicial proceeding in which his rights are likely to be affected. It is for that reason various statutes including the Civil Procedure Code prescribe for issue of notice to person against whom a legal proceeding is instituted or who, in the opinion of the court is likely to be affected in the result of the proceeding. The Civil Procedure Code also provides for substitution of the legal representatives of a party to a litigation for successful continuance of the proceeding. Rule 1 of O. 22 provides that death of a plaintiff or defendant shall not cause the suit to abate if the right to sue servives. The next rule is to the effect that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Difficulty, however, arises where right to sue does not survive to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone. For such contingencies the procedure has been laid for substitution of the legal representatives of the deceased plaintiff or deceased defendant in Rr. 3 and 4 respectively of O. 22 of the Code. Rule 4 of O. 22 of the Code is to the effect that where one or two or more defendants die (s) and the right to sue does not survive against the surviving defendant or defendnts alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. If no substitution is made, the consequence is that the suit shall abate as against the deceased defendant. Rule 12 of O. 22 says that nothing in Rr. If no substitution is made, the consequence is that the suit shall abate as against the deceased defendant. Rule 12 of O. 22 says that nothing in Rr. 3, 4 and 8 shall apply to the proceeding in execution of a decree or order. The Orissa High Court Amendment to the aforesaid rule is that the said Rr. 3, 4 and 8 shall not apply to proceedings in the original court taken after the passing of the preliminary decree where having regard to the nature of the suit a final decree is required to be passed. The aforesaid High Court Amendment was made on 7-5-1954. The Civil P. C. (Amendment) Act, 1976 (Act 104 of 1976) in S. 97 saved the same by enacting that any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed. There is nothing in the aforesaid amendment of O. 22. R. 12 which is inconsistent with the Principal Act as amended by Act 104 of 1976. Thus the said amendment remains effective even after the Civil P. C. was amended by the aforesaid Amendment Act. Even otherwise, some High Courts are of the view that after declaration of the rights of the parties in the preliminary decree there can be no abatement of the suit for want of substitution of the legal representatives of a deceased party as the final decree merely gives affect to the directions in the preliminary decree. ( 5 ) ADMITTEDLY the death of defendant No. 2 occurred after passing of the preliminary decree and before the final decree was passed. By applying the provisions of the Orissa Amendment to O. 22. R. 12, it is clear that the suit would not abate by virtue of non-substitution of the legal representatives of defendant No. 2. The question, therefore, is as to whether, even though the suit does not abate as a consequence of non-sustitution of the legal representatives of a deceased party the final decree passed in the said suit would be a nullity or it would be a valid decree capable of being executed. The question, therefore, is as to whether, even though the suit does not abate as a consequence of non-sustitution of the legal representatives of a deceased party the final decree passed in the said suit would be a nullity or it would be a valid decree capable of being executed. ( 6 ) A suit for partition and some other category of suits stand on a different footing. In a suit for partition the Civil P. C. provides that the court may pass a preliminary decree declaring the rights of the parties interested in the property and giving such further direction as may be required if it finds that tile partition or separation cannot be conveniently made without further enquiry. Law is well settled that even though a preliminary decree is passed in a suit for partition, it is still a pending suit in which the court is to pass a final decree after making necessary enquiries, though it is conclusive and final so far as tile matters dealt with by the court are concerned. After the passing of the preliminary decree, each of the parties, whose right and interest to the property continue to be a party in the suit in the final decree proceeding and is entitled to take part in the further enquiry to be held by the court in the matter of actual partition by metes and bounds with the help of the Commissioner or otherwise. In other words, even after the passing of the preliminary decree each of the parties to the suit has a right to contest the final decree proceeding, the scope of which may extend to object to the manner of division, valuation of the properties and any adjustment which might be expedient either on account of subsequent developments or otherwise. Therefore, even though the rules of the Civil P. C. as amended by the Orissa High Court specifically provide that there shall be no abatement to the suit on account of non-substitution of the legal representatives of a deceased-defendant, it cannot be further extended to mean that the legal representatives of such defendant are not necessary parties to the proceeding. I would proceed to examine the decisions relied upon by the learned trial court in the aforesaid background. ( 7 ) THE case before the Calcutta High Court in AIR 1954 Cal 205 (Supra) was on a different footing altogether. I would proceed to examine the decisions relied upon by the learned trial court in the aforesaid background. ( 7 ) THE case before the Calcutta High Court in AIR 1954 Cal 205 (Supra) was on a different footing altogether. It was an appeal arising out of a proceeding in execution in which the appellants were defendants in the original suit. The plaintiffs, who were two brothers, instituted the suit, for ejectment against the defendants and obtained a decree. The decree was put into execution and in the executing court an objection was filed by the judgment-debtors u/s 47 of the Code to the effect that during the pendency of the ejectmeat suit one of the plaintiffs died and his legal representatives were not substituted. On that basis, it was contended that the suit must be taken to have abated and, therefore, the decree passed was without jurisdiction and was a nullity. The High Court on the materials on record found that after the death of one of the plaintiffs, the other surviving plaintiff was the sole legal representative of the deceased-plaintiff. Having so found the court held that it would be a case covered by R. 2 of O. 22 of the code which says that where there are more plaintiffs than one and one of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone the suit shall proceed at the instance of the surviving plaintiff or plaintiffs. In such circumstances the Hon'ble Court observed that where the case is covered by R. 2 of O. 22 and the fact of death was not brought to the notice of the court when it passed the decree it would be considered as a mere irregularity and cannot have the effect of making the decree as one without jurisdiction. The further observation of the Hon'ble Court that generally speaking a decree passed in favour of a dead person is not a nullity although a decree made against a dead person is a nullity does not appear to be supported by any authority of law. His Lordship was dealing with a case in which a decree was passed, against a dead person and not in favour of a dead person. His Lordship was dealing with a case in which a decree was passed, against a dead person and not in favour of a dead person. The aforesaid observation ignores the basic feature in O. 22, R. 4 of the code that if no application is made for substitution, the suit shall abate as against the deceased defendant which in law is automatic and does not wait to be considered till the decree is passed. In a pending suit where a defendant on whose death the right to sue does not survive against the surviving defendant or defendants alone the legal representatives of the deceased-defendant have to be brought on record and failure to take steps in that behalf would result in the abatement of the suit as against the deceased-defendant at that stage. The court need not pass any order directing the abatement of the suit as against the deceased defendant, as the consequence, as provided under law, would operate by itself. ( 8 ) IN the case reported in AIR 1959 Bom 394 (supra) their Lordships expressed the view that where a preliminary decree in a suit for foreclosure is passed in ignorance of the death of one of the plaintiffs, the court cannot refuse to pass a final decree on the application of the remaining plaintiffs merely because the legal representatives of the deceased-plaintiff have not been brought on record within the period of limitation. In that case one of the plaintiffs died and the said fact was not brought to the notice of the court before passing of the final decree. Their Lordships took the view that in such a case the court proceeds with the case in ignorance of the fact of death of a person and passes a decree, which may be termed wrong decree, but it cannot be treated as nullity. According to their Lordships, such a wrong decree will have to be set aside by taking appropriate proceeding as would have been the case had the points been raised, but wrongly decided by the court and that the decree cannot be ignored nor can the court refuse to make the said decree to be final. According to their Lordships, such a wrong decree will have to be set aside by taking appropriate proceeding as would have been the case had the points been raised, but wrongly decided by the court and that the decree cannot be ignored nor can the court refuse to make the said decree to be final. We, however, express our inability to accept the said view to be correct in law inasmuch as the provisions of law in O. 22 is that if no substitution is made within the time limited by law for substitution of the legal representatives of a deceased party, the suit shall abate as against the deceased party. This consequence is one of law and would come into operation without any order being passed by the court. The word "abatement" in O. 22 means to put an end to litigation so far as the deceased party is concerned. In a case where the right to sue does not survive to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, substitution of the legal representatives of the deceased party is a requirement of law, in the absence of which the suit comes to an end as against the deceased party. The court thereafter has to examine if the abatement as against one of the parties would result in the abatement of the whole suit. If this be the correct analysis of the law, the inference that the decree passed in such a suit is merely a wrong decree as has been held in the aforesaid case cannot be held to be a correct exposition of law. ( 9 ) FOLLOWING the aforesaid decisions of the Calcutta and Bombay High Courts, Justice Venugopal in the case reported in AIR 1983 Mad 5 (supra) held that where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity though it may be termed as a wrong decree. Since the defendants in that case did not challenge the decree either by way of appeal, revision or review, nor did take any steps for setting it aside in the suit itself by appropriate proceeding, the Hon'ble court held that it is not open to the executing court to refuse execution of the decree on the ground that the decree has been passed in favour of a dead person. For the aforesaid reasons, we are unable to subscribe to the said vie expressed in the abovementioned cases. ( 10 ) AS per the analysis made above, the consequence for non-substitution would be the same whether the decree ultimately passed is in favour of or against the party who is dead. ( 11 ) IN the facts of this case, we have already indicated that there would be no question of abatement since the death of defendant No. 2 occurred after the preliminary decree is passed and during the pendency of the final decree proceeding. But his L. Rs. were necessary parties in the final decree proceeding in whose absence the proceeding could not be continued. This situation can be equated with a case where final decree proceeding is initiated and continued without notice to the parties to the proceeding. The only effect of Orissa Amendment to O. 22, R. 12 C. P. C. is that Rr. 3, 4 and 8 of the said Order do not apply to the final decree proceeding. But it does not sanction that the final decree proceeding shall continue without the legal representatives of a deceased party whose interest is likely to be effected by the final decree. The final decree passed in the absence of necessary parties must be held to be a nullity as it dealt with the rights of the parties without notice to them and in their absence. We, therefore, agree with the view expressed by this Court in AIR, 1961 Orissa 140 (supra ). Similar view has been taken by the Patna High Court in the case reported in AIR 1962 Pat 178 (Ramsewak Mishra v. Mt. Deorati Kuer ). ( 12 ) ONCE it is held that the final decree was a nullity, it follows that the executing court may refuse to execute such a decree. Similar view has been taken by the Patna High Court in the case reported in AIR 1962 Pat 178 (Ramsewak Mishra v. Mt. Deorati Kuer ). ( 12 ) ONCE it is held that the final decree was a nullity, it follows that the executing court may refuse to execute such a decree. We need not go into a large number of decisions of different High Courts including of our own and that of the Supreme Court for the proposition that an executing court cannot go behind the decree nor can it question its legality or correctness unless the decree sought to be executed is a nullity. Since we have held that the decree sought to be executed is a nullity, the further question as to whether Balaram Puhan is the adopted son and legal representative of deceased defendant 2 does not arise for consideration. ( 13 ) WE, therefore, allow this revision and set aside the impugned order. There shall be no orders to costs. ( 14 ) A. PASAYAT, J. :- I agree. Revision allowed. .