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2000 DIGILAW 980 (PAT)

Prabhu Narayan Pandey v. Kalawati Devi

2000-08-09

D.P.S.CHAUDHARY, NAGENDRA RAI

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ORDER : Heard the parties. 2. This. appeal is directed against part of the order dated 29.6.1999 passed by the learned Single Judge in FA No. 640 of 1998 by which proceedings in the final decree has been stayed till the disposal of the appeal. 3. The facts necessary for disposal of the appeal are that the plaintiffs appellants filed suit for partition. Defendant No. 13 died during the pendency of the suit. It was submitted on behalf of the plaintiffs that the heirs were already on record and in that view of the name of the defendant no. 3 was expunged. Thereafter, the plaintiffs' suit for partition was decreed. Kalawati Devi (Respondent No.1) has filed the aforesaid appeal out of which this appeal arises challenging the decree primarily on the ground that she being Class-I heir was not brought on the record during the pendency of the suit and as such the decree was nullity in the eye of law. 4. During the pendency of the aforesaid First Appeal, Kalawati Devi filed an application for staying the proceedings initiated for preparation of the final decree in the court below and the same has been stayed. Hence this appeal. 5. Learned counsel for the appellants submitted that the consistent practice of this Court is not to stay preparation of final decree specially when the aggrieved person has remedy to file stay application in case appeal is filed against the final decree. He also submitted that in this case if proceeding for preparation of final decree is stayed, then it will prejudice the decree holders-appellants. 6. Learned counsel appearing for Respondent No. 1 Kalawati Devi on the other hand submitted that the decree on the face of it is nullity and in such case allowing the preparation of final decree will be mere wastage of time of the Court and it will also adversely affect the interest of respondent no. 1. In support of the said submission, he relied upon the judgment of the Supreme Court in Leelabai vs. Rajaram, (1998)8 SCC 543 as well as judgment of this Court. 7. The legal proposition that in absence of necessary party on the record of the suit, the decree would not be binding on him/her is not disputed by the counsel for the appellants. . 7. The legal proposition that in absence of necessary party on the record of the suit, the decree would not be binding on him/her is not disputed by the counsel for the appellants. . However, he rightly submitted that the said question has to be gone into at the time of final disposal of the appeal and that cannot be decided at this stage. In our view, if it is found ultimately that the decree is nullity then it will be set aside. The proceeding for preparation of final decree cannot be stayed on the said ground as the preparation of final decree takes a number of years. The respondent no. 1 in case of preparation of final decree can file an appeal and also pray stay of execution of final decree. We are of the view that the preparation of final decree should not have been stayed by the learned Single Judge. Accordingly, the order staying preparation of final decree is set aside. 8. In the result, this appeal is allowed.