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2005 DIGILAW 296 (PNJ)

Nirankar Dev v. Lala Sri Kishan Dass

2005-02-23

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The petitioner is aggrieved against the order passed by the learned Executing Court whereby his objections to the execution of the decree for possession dated 18.11.1976 were dismissed. 2. The decree holder-respondents filed a suit for possession of an area measuring 275 square yards bearing khasra No. 1904 M in situated at Hissar, Rohtak. The said suit was filed against M/s Parkash Dev and brothers through its partner Jagdish Chander. Jagdish Chander was impleaded as defendant No. 2 was another partner Parma Nand is pleaded as defendant No.3. After the death of Parma Nand, Jagdish Chander, Parkash Dev, Bhim Sain, Nirankar Dev, Satish Kumar and Smt. Rani were impleaded as his legal representatives on an application dated 6.7.1976 under Order 22 Rule 4 of the Code of Civil Procedure (hereinafter referred to as the Code) filed by the plaintiff. Notice was issued to the legal representatives. Subsequently name of Smt. Rani was deleted from the memo of parties as she was stated to be not a legal representative of deceased Parma Nand on the basis of Will. Shri Partap Chand Advocate put in appearance on behalf of the newly added respondents as well. The suit was decided on the basis of compromise and an area of 64 square yards was left to the plaintiff and suit decreed to that extent whereby the claim of the plaintiff in respect of remaining area was dismissed on 18.11.1976. It was thereafter on 20.9.1977, Parkash Dev, Nirankar Dev, Bhim Singh, Satish Kumar and Smt. Gian Devi claiming to be heirs of Parma Nand moved an application under Order 22 Rule 4 of the Code for setting aside the compromise decree on the ground that Sh. Partap Chand, Advocate, was never authorised to act on behalf of the legal representatives of the deceased nor the said legal representatives were even served with the process of court. It was alleged that on account of mistake of the court reader Sh. Partap Chand, Advocate continued to be reflected to defend the defendant-applicants. 3. Learned executing court found that Jagdish Chander and Parma Nand were impleaded as defendants in the plaint. It was the stand of the defendants that Jagdish Chander and Parma Nand were not necessary parties. It was alleged that on account of mistake of the court reader Sh. Partap Chand, Advocate continued to be reflected to defend the defendant-applicants. 3. Learned executing court found that Jagdish Chander and Parma Nand were impleaded as defendants in the plaint. It was the stand of the defendants that Jagdish Chander and Parma Nand were not necessary parties. The executing court also found that it was for the legal representative to prove that they were unaware of the suit or that there was no intention on their part not to make an application in time and if they had been brought on file as the legal representatives of the deceased different result may have followed. The court found that the compromise statement signed on behalf of the defendants by Shri Partap Chand, Advocate included the legal representatives of the deceased and the applicants cannot be allowed to wriggle out of the compromise. Said order was affirmed in appeal filed by one of the legal representatives namely Nirankar Dev by the learned District Judge, Rohtak on 20.10.1983. 4. Parma Nand had died on 18.10.1975. His legal representatives were brought on record. One of the legal representatives Jagdish Chander was already impleaded as defendant No. 2. A written statement was already on the file on behalf of the Jagdish Chander and Parma Nand, Subsequently, a compromise decree was passed on the basis of compromise signed by Shri Partap Chand Advocate on behalf of the legal representatives of the deceased including Jagdish Chander defendant, who was being represented by the said Advocate. 5. It is a finding recorded by the courts below that Shri Partap Chand, Advocate was duly authorised representative of the legal representatives and thus the compromise is binding on them. Even if the argument raised by the petitioner is to be accepted still the compromise signed on behalf of one of the legal heirs would bind the entire estate of deceased and would be binding on all the legal heirs. It is not the case set up by the petitioners that one of the legal representatives who was defendant No. 2 in the suit has failed to protect the interest of the estate or has colluded with the plaintiff. 6. It is not the case set up by the petitioners that one of the legal representatives who was defendant No. 2 in the suit has failed to protect the interest of the estate or has colluded with the plaintiff. 6. It is well settled that where a plaintiff or an appellant after diligent and bona fide inquiry implead the legal representatives of the deceased, the impugned legal representatives sufficiently represented the estate of deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. In Daya Ram and Ors. V/s. Shyama Sundari and Ors. it was so held by the Hon ble Supreme Court as follows: "Where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. In a case where the person brought on record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating." 7. In Dolai Maliko and Ors. v. Krushna Chandra Patnaik and Ors., the Supreme Court considered the effect that if some of the legal representatives apply for bringing themselves on record as legal representatives of the deceased appellant, unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings, the legal representatives on record would bind the entire estate: "This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record, this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist." 8. A Division Bench of this Court in Sardara Singh and Anr. V/s. Harbhajan Singh and Ors., has held that it is not necessary to serve two daughters of the deceased respondent as their interest was fully protected by their three brothers who were already on record. It was held that what has to be seen is whether the estate is effectively represented. It was held to the following effect: "6. Mr. Jain, learned counsel for the appellants then argued that Harbhajan Singh, respondent No. 1, is dead and although his three sons, respondents Nos.2 to 4, who are also the transferees by reason of the exchange, are on record yet his two daughters though impleaded, have not been served. In our opinion, it is not necessary to serve them because their interests are fully protected by their three brothers who are already on record. It is not necessary in every case to bring all the legal representatives on record. What has to be seen is whether the estate is effectively represented. In this case it is so." 9. In our opinion, it is not necessary to serve them because their interests are fully protected by their three brothers who are already on record. It is not necessary in every case to bring all the legal representatives on record. What has to be seen is whether the estate is effectively represented. In this case it is so." 9. Consequently, the compromise signed by Partap Chand Advocate, on behalf of Jagdish Chander, the original impleaded defendant and one of the legal heirs of Parma Nand would bind the entire estate of Parma Nand even though one or more of the legal representatives were not impleaded. Even if the legal representatives have not engaged Shri Partap Chand Advocate, the estate of Parma Nand was represented in any case by Jagdish Chander one of the sons of Parma Nand who was already on record. 10. Consequently, 1 do not find any material illegality or irregularity in the order passed by the Executing Court warranting interference by this Court in the exercise of revisional jurisdiction under Article 227 of the Constitution of India.