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2005 DIGILAW 2375 (RAJ)

Kewal Chand v. Alkhi Ram

2005-09-07

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-This second appeal has been submitted against the Judgment and decree dated 110.1996 passed by the Civil Judge (Sr. Division), Merta in Civil Appeal No. 96/1990 whereby learned Civil Judge dismissed the appeal and affirmed the Judgment and decree dated 011.1989 passed by the Munsif , Merta City in Civil Suit No. 100/ 1982. 2. A brief resume of the facts would suffice for the purpose of this order. Alkhi Ram and Bhanwarlal filed a suit arraying Dagadulal, Kewalchand and his four sons as one set of defendants; and Rajaram, Gulabchand, Om Prakash, Binjraj and Ganpatlal as the other set of defendants. The suit was filed for cancellation of the sale-deed executed by defendant No. 1 Dagadulal in favour of defendants No. 2 to 6 Kewalchand and his sons. In the suit, the status of other defendants No. 7 to 11 was stated in the manner that those defendants were also having the common interest with the plaintiffs. After trial, the learned Munsif , Merta decreed the suit and passed the following decree on 011.1989:- Þoknhx.k o izfroknh la[;k lkr ls X;kjg dk ;g okn fMØh djrs gq, ;g vknsk fn;k tkrk gS fd oknxzLr uksgjk ftls fd ekufp= esa , ch lh Mh ds #i esa fn[kk;k x;k gS ml uksgjs ij izfroknh nxMwjke dk dksbZ vf /kdkj o LokfeRo izekf .kr ugha gS] mlds }kjk dsoypan ds o mlds iq=kas ds i{k esa fd;k x;k bl Hkwfe dk cspkuukek voS/k o kwU; gS tks fujLr fd;k tkrk gSA bl Hkwfe dk dCtk Hkh oknhx.k o izfroknhx.k la[;k lkr ls X;kjg izkIr djus ds vf /kdkjh gSA bl Hkwfe ij dsoypan izfroknh la[;k nks us tks ifV~V;ka #iokbZ gS mUgsa [;k lkr ls X;kjg dks vf /kdkj gSA izfroknh laHkh gVokus ds oknhx.k o izfroknhx.k la[;k nks ls N % fookfnr uksgjs dk dCtk oknhx.k o izfroknhx.k la- 7 ls 11 dks LkkSi nsA okn dk [kpkZ Hkh oknhx.k o izfroknhx.k la[;k lkr ls X;kjg izkIr dj ldrs gSAß 3. The decree aforesaid was challenged by the defendants Kewalchand and his sons before the Civil Judge (Sr. Division), Merta in Appeal No. 96/1990 but the said appeal was dismissed by the learned Appellate Court on 110.1996 and the decree of the trial Court was affirmed. 4. The decree aforesaid was challenged by the defendants Kewalchand and his sons before the Civil Judge (Sr. Division), Merta in Appeal No. 96/1990 but the said appeal was dismissed by the learned Appellate Court on 110.1996 and the decree of the trial Court was affirmed. 4. This second appeal against the aforesaid Judgment and decree dated 110.1996 was admitted by this Court on 10.01.1997 formulating three substantial questions of law to be involved in this case and notices were issued to the respondents. 5. Leaving aside other unnecessary details, suffice is to point out that although some of the respondents were served but particularly about respondents No. 4, 5, 6 and 7, it was reported way back in the year 1998 that they had expired and the appellants were required to take steps in their respect. However, the appellants failed to take any steps and, therefore, ultimately a detailed order was passed by this Court on 14.03.2000 which reads as under:- “Learned Counsel for the appellant has filed PF and notices of the unserved respondents No. 1, 2 and 8 alongwith application for condonation of delay. The delay is condoned. So far as respondents Nos. 4, 5, 6 and 7 are concerned, it is way back on 26.09.1998 it was reported that they have died and the Counsel was directed to take steps. Thereafter, on 02.02.2000 again the learned Counsel sought two weeks time to take steps. Nothing has been done so far. According to provisions of Order 22 Rule 4 CPC the abatement is automatic. Consequently, the appeal against respondents No. 4, 5, 6 and 7 stands abated. Their names may be deleted from the array of respondents. Learned Counsel to file amended cause title. It is open to the other respondents to raise objection at the time of hearing as to whether the appeal remains maintainable or not. Office to proceed.” 6. In view of the aforesaid, the present appeal stood abated against the respondents No. 4, 5, 6 and 7, leaving it for the respondents to raise objection at the time of hearing as to whether the appeal remains competent or not. 7. Thereafter, the proceedings in this appeal have continued for service on the other unserved respondents and so also for the substitution of legal representatives of appellant No. 1 Kewalchand. 7. Thereafter, the proceedings in this appeal have continued for service on the other unserved respondents and so also for the substitution of legal representatives of appellant No. 1 Kewalchand. Be that as it may, ultimately this matter was pending for service on respondent No. 8 Dagadulal who had not been served despite repeated efforts and his notices were received unserved for want of fresh address and the matter was to be placed before the Dy. Registrar (Judicial) on 08.09.2005 as per order-sheet noting dated 02.08.2005 as the appellant had failed to file requisite notices. 8. However, in the meantime, three applications came to be filed because of which the matter has been placed today before the Court. 9. Firstly, an application was filed purportedly under Order 22 Rule 10 read with Sections 141 and 151 CPC by Devraj, Lalchand, Roopchand and Om Prakash all sons of Shri Ram Kumar on 04.08.2005. By way of this application, it has been submitted that during pendency of the first appeal, the present applicants and their brother Om Prakash had purchased the disputed property alongwith other property from Alkhi Ram, respondent No. 1 by way of registered sale deed executed on 28.05.1993 and registered on 11.06.1993. A copy of sale-deed has also been produced on record. The applicants have submitted that hitherto they remained under bond fide belief that the respondents plaintiffs were contesting the lis but now the conduct of respondent-Bhanwarlal shows that he was intending to defraud the purchasers-applicants and in these circumstances, it has been prayed that the applicants may be substituted as party respondents in place of respondents No. 1 and 2 i.e., the original plaintiffs. 10. On 04.08.2005 itself , another application was filed by the appellant No. 2 Om Prakash Soni jointly with respondent No. 2 Bhanwarlal through their respective Counsel stating that they had compromised the matter and it was prayed that the plaintiffs may be permitted to withdraw their suit and the documents filed by the plaintiffs may be permitted to be received by Om Prakash appellant. 11. Before any orders were passed on the applications aforesaid, a compromise deed was filed before the Dy. 11. Before any orders were passed on the applications aforesaid, a compromise deed was filed before the Dy. Registrar (Judicial) of this Court on 01.09.2005 jointly by the aforesaid applicants of the application dated 04.08.2005 and so also the aforesaid appellant No. 2 Om Prakash and so also by one Manik Rajaram Verma stating himself to be the power of attorney holder of respondent No. 2 Bhanwarlal. It has been prayed in this compromise deed that the earlier application filed by the plaintiffs for withdrawal of the suit may be dismissed as not pressed and at the same time, it has been prayed that by way of this compromise, the decree passed by the trial Court dated 011.1989 and that of the appellate Court dated 10.11.1996 may be modified in terms of this compromise and a modified decree may be passed with delineation of the portions to be held by the respective parties as given out in a plan attached to the compromise. The compromise deed was presented before the Dy. Registrar (Judicial) and was duly verified and the same has also been placed before the Court for orders. 12. Having considered the entire proceedings in this case and particularly the impugned Judgment and decree, learned Counsel for the appellants was specifically put the question that in view of the nature of decree wherein the suit has been decreed for the plaintiffs as well as defendants No. 7 to 11; and when a decree exists in favour of not only the plaintiffs but also in favour of defendants No. 7 to 11; and by way of that decree, the alienation of the property by Dagadulal to Kewalchand has been declared to be invalid in law; and when this Court has already passed the order on 14.03.2000 to the effect that this appeal stands abated qua the respondents No. 4, 5, 6 and 7 (who were defendants No. 10, 11, 8 and 9 respectively in the said suit), how could the said concluded decree be altered or modified in their absence? 10.13. 10.13. Learned Counsel for the appellant firstly attempted to submit that appeal abates only in respect of said respondents and not as a whole but after looking into all the facts and circumstances and the subject matter of two Judgment s, and particularly the terms of the decree, learned Counsel for the appellant and so also learned Counsel for the applicants were not in a position to controvert the inescapable conclusion that once that decree which was in favour of said deceased respondents also, has become final qua them, no alteration in that decree could be made in this appeal now at the instance of the appellant or even the applicants. 114. In view of the nature of the decree granted by the learned trial Court dated 011.1989, this Court is clearly of opinion that the decree is clearly indivisible and inseparable and once the present appeal has abated qua the respondents No. 4 to 7 and, therefore, the decree in their favour has become final, no alteration in that decree could be made. 115. In that view of the matter, the prayer for recording the compromise and for alteration of the decree cannot be granted. The deed for compromise is, therefore, not accepted and may be filed. 116. So far the application for withdrawal of the suit is concerned, the same has not been pressed by the learned Counsel and the said application is also rejected. 117. In the aforesaid status of the record of the case, no purpose is to be served even if the applicants of the application dated 04.08.2005 are permitted to be substituted under Order 22 Rule 10 CPC as respondents or they are permitted to join this litigation in any capacity because the appeal having abated against respondents No. 4 to 7, no right to sue and continue the appeal survives against the remaining respondents because of the nature of the decree which is inseparable and enures to the benefit of the plaintiffs and defendants No. 7 to 11 jointly. For the indivisible nature of the decree, effect of abatement qua the respondents No. 4 to 7 remains that the appeal stand abated as a whole. 18. The appeal has abated and be consigned to record as such.