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2005 DIGILAW 941 (MAD)

Mumtaj Begum v. Mukkan Chand Bodra & Others

2005-06-28

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The revision petitioner is the third party and has filed this revision against the dismissal of the petition in E.A.No.265 of 2001 in E.P.No.34 of 2001 in O.S.No.70 of 1987 on the file of Additional Sub Court, Myladuthurai as per order dated 29.08.2003. The said E.A. was filed to dismiss the execution petition for delivery of possession on the basis of the ex parte decree in the suit. 2. The revision petitioner claims that she is one of the daughters of Mohammed Salih, the first defendant in the suit and after his death, she was not made as a party in the suit, which was filed for specific performance of an agreement for sale against Mohammed Salih, Ummal Bajria and Mohamuda Bivi, the defendants and which was decreed ex parte on 12.07.1990. The revision petitioner came to know that the legal representatives of the third defendant Mohamuda Bivi have been added in E.P.No.28 of 1991 as per the order in E.A.No.379 of 1991 as respondents 4 and 5. The revision petitioner also came to know that respondents 6 to 12 have been added as the legal representatives of the first defendant Mohammed Salih in E.P.No.28 of 1991 as per the order in E.A.No.52 of 1994. The sale deed was executed in E.P.No.44 of 1996. During the pendency of the suit, the third defendant Mohamuda Bivi died on 7.3.1990 and by suppressing the same, ex parte decree was obtained on 12.07.1990. Inasmuch as the legal representatives of Mohamuda Bivi have not been added within ninety days, the suit against the third defendant Mohamuda Bivi was abated and therefore, the ex parte decree dated 12.07.1990 is not valid in law. Respondents 2, 4, 5 and 10 to 12 were given up at the execution stage. By speaking all these, the revision petitioner filed the petition in E.A.No.265 of 2001 under Section 47 of Civil Procedure Code, which is the subject matter of this revision. 3. The petition was opposed by the first respondent/ decree holder. The suit was filed by him for specific performance of agreement for sale as per the agreement entered into between him and the first defendant. A sum of Rs.50,000/- was paid as advance and the balance amount of Rs.25,000/- out of the entire sale consideration of Rs.75,000/- was deposited in the Court. The suit was filed by him for specific performance of agreement for sale as per the agreement entered into between him and the first defendant. A sum of Rs.50,000/- was paid as advance and the balance amount of Rs.25,000/- out of the entire sale consideration of Rs.75,000/- was deposited in the Court. The suit was decreed and the execution petition was filed only after the death of the first defendant and his legal representatives were added as respondents 6 to 12, who contested the execution petition, in which no ground was made that the revision petitioner was not made as a party and she is also one of the daughters of Mohammed Salih. Thereafter, a sale deed was executed on 28.02.1997 by the Executing Court. All the proceedings were resisted by respondents 2 to 5. Now the execution petition was filed for delivery of possession, in which also respondents 2 to 5 have not made any objection for not impleading the revision petitioner. If the revision petitioner is also one of the legal representatives, at best, she is only entitled to her share in the balance sale consideration viz., Rs.25,000/- deposited in the Court, as the first defendant had already received Rs.50,000/- as advance out of the sale consideration of Rs.75,000/- at the time of execution of the agreement for sale. 4. The revision petitioner was examined as P.W.1 and marked Ex.P-1 and no evidence was let in on the other side. The trial Court in refusing to accept the case of the revision petitioner/third party, ultimately dismissed E.A.No.265 of 2001, which is under challenge in this revision. 5. Heard the learned counsel for the revision petitioner, the learned counsel for the first respondent and the learned counsel for the respondents 2 to 5. 6. Learned counsel for the revision petitioner argued that despite the fact that her father Mohammed Salih, the first defendant in the suit died on 2.7.1993, the revision petitioner was not impleaded as a legal representative of the first defendant in E.P.No.34 of 2001 though she is the eldest daughter of the said Mohammed Salih. Therefore, the order made in E.P.No.34 of 2001 without impleading the revision petitioner as a legal representative of the first defendant Mohammed Salih is not executable and improper. Therefore, the order made in E.P.No.34 of 2001 without impleading the revision petitioner as a legal representative of the first defendant Mohammed Salih is not executable and improper. The other submission made by the learned counsel is that the third defendant Mohamuda Bivi died on 7.3.1990 during the pendency of the suit and before the judgment and decree dated 12.7.1990 and as such, the decree against the dead person, the third defendant is null and void. 7. The learned counsel for the revision petitioner has relied on the decision in M.Mariammal & Others vs. Arulmighu Subramaniasamy Thirukoil, reported in 2002 (1) TLNJ 161, in which this Court held that the power of exemption from bringing the legal representative can be exercised before the pronouncement of the judgment either by trial Court or appellate Court during which stage defendant or respondent remained ex parte and died. The decree against the dead person is not executable and it is not open to bring the legal representatives of the deceased at the execution stage especially when suit abated. 8. Learned counsel for the first respondent/plaintiff relying on the stand taken by him in the counter filed in E.A.No.265 of 2001 mainly argued that inasmuch as admittedly the legal representatives of the first defendant have been added as respondents 6 to 12 in E.A.No.52 of 1994 in E.P.No.28 of 1991 and who contested the said E.P. as well as other execution proceedings without stating that there is another legal representative viz., the revision petitioner being the eldest daughter of the deceased first defendant, the order passed in the said proceedings are binding on the revision petitioner and it is not open to her to canvass the said order, especially when the sale deed was executed by the executing Court after contest by respondents 6 to 12 as the legal representatives of the deceased first defendant and when execution petition is pending for delivery of the property and in which also no such objection was made. Learned counsel further submitted that it is not open to the revision petitioner to urge that the decree is not executable and to raise such a plea on behalf of the deceased third defendant Mohamuda Bivi, whose legal representatives have been added as respondents 4 and 5 in E.P.No.28 of 1991 as per order in E.A.No.379 of 1991. 9. Learned counsel further submitted that it is not open to the revision petitioner to urge that the decree is not executable and to raise such a plea on behalf of the deceased third defendant Mohamuda Bivi, whose legal representatives have been added as respondents 4 and 5 in E.P.No.28 of 1991 as per order in E.A.No.379 of 1991. 9. The learned counsel for the first respondent/plaintiff relied on the following decisions:- (1) Daya Ram and Others – vs. - Shyam Sundari reported in (1965) 1 SCR 231 , in which, the Hon'ble Supreme Court held as follows:- "Under Order XXII, Rule 4(1) and (3) of the Civil Procedure Code, 1908, where a plaintiff or an appellant after diligent and bona fide enquiry ascertained who the legal representatives of a deceased defendant or respondent were, and brought them on record within the time limited by law, there would be no abatement of the suit or appeal, even though some other legal representatives remained unknown to him and were not impleaded, if those legal representatives who were impleaded sufficiently represented the estate and a decision obtained against them bound the entire estate. If however it is brought to the notice of the appellant during the pendency of the appeal that some of the legal representatives had not been impleaded, it would be the duty of the appellant who was thus made aware of his default, to bring those others on record." In the said decision, the Supreme Court has extracted the ruling of the Madras High Court, in Kadir - v. - Muthukrishna Ayyar reported in 1902 ILR 26 Madras 230, which read thus:- " In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate..... if this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative." (2) Krishnaveni - vs. - Ramachandra Naidu reported in AIR 1998 Madras 379, in which the learned Judge has held as follows:- "A plain reading of the above extracted provision unambiguously and clearly shows that the Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, (i) who has failed to file written statement, or (ii) who, having filed it, has failed to appear and contest the suit at the hearing. Further a Court after granting such exemption, may pronounce judgment in such case against the said defendant notwithstanding the death of such defendant, and the judgment so pronounced shall have the same force and effect as if it has been pronounced before the death took place." 10. Records reveal that the suit for specific performance of agreement of sale was filed on 4.8.1987 on the strength of the agreement of sale dated 27.9.1986 for Rs.75,000/- between the plaintiff, the decree-holder and the first defendant represented by his wife Ajeetha Bevi as his power of attorney. Before filing the suit, notice was caused on 15.7.1987 and though it was served to the first defendant, no reply was caused thereafter. Before filing the suit, notice was caused on 15.7.1987 and though it was served to the first defendant, no reply was caused thereafter. Though the first defendant entered appearance in the suit through advocate and the defendants 2 and 3, who were added at the instance of the first defendant, they being the daughters of second wife of Sheik Davood, father of the first defendant, Mohammed Salih and who were added as defendants 2 and 3 as per order dated 23.8.1989 in I.A.No.743 of 1989 also entered appearance through advocate, did not choose to contest the suit and remained ex parte and an ex parte decree was passed on 12.7.1990. The revision petitioner claims that she is also one of the daughters of the first defendant and as such, the execution proceedings in which she is not added as one of the legal representatives of her father, the first defendant Mohammed Salih, who died on 2.7.1993, though the other legal representatives of the first defendant were made as parties, is null and void and as such, the petition E.P.No.34 of 2001 in O.S.No.70 of 1987 which is now pending for delivery of possession is to be dismissed. There is no force in such contention, in view of the fact, the other legal representatives of the first defendant were added as parties and as rightly argued by the learned counsel for the first respondent/decree-holder that all the execution proceedings were contested by them without stating that there is another legal representative of the first defendant, viz., the revision petitioner, the eldest daughter of the said Mohammed Salih and is also one of the necessary parties and as such, it is not open to the revision petitioner to seek dismissal of the execution proceedings filed for delivery. The suit itself was not contested by her parents and step sister and in execution proceedings initiated for execution of sale deed and for delivery of property, in which the other legal representatives of the first defendant have been impleaded as his legal representatives, no objection has been made. 11. The suit itself was not contested by her parents and step sister and in execution proceedings initiated for execution of sale deed and for delivery of property, in which the other legal representatives of the first defendant have been impleaded as his legal representatives, no objection has been made. 11. As regards the argument advanced for the revision petitioner that the decree is not executable, in view of the fact that the third defendant Mohamuda Bivi, who was added as per order in I.A.No.743 of 1989, died on 7.3.1990 even before the ex parte decree was passed in the suit on 12.7.1990 and so the suit has been abated against the third defendant since her legal representatives were not added in the suit and before passing the decree, such a case is unacceptable. No such stand has been taken by the legal representatives of the third defendant, who have been added in the execution proceedings and it is only the revision petitioner who is the brother's daughter of the third defendant is making such a plea which is not supported by any documentary evidence that the third defendant actually died on 7.3.1990 and before passing of the ex parte decree in the suit on 12.7.1990. Since no materials were produced before the Court that the third defendant died on 7.3.1990, the ex parte decree passed on 12.7.1990 is valid in law. Therefore, the execution proceedings, in which the legal representatives of the first defendant have been brought on record and who have contested the said proceedings as well the legal representatives of the third defendant have been brought on record in the execution proceedings and they also contested the said proceedings, the petition E.A.No.265 of 2001 in E.P.No.34 of 2001 was filed by the revision petitioner for dismissal of the E.P.No.34 of 2001 for delivery of possession, is only to delay the proceedings and to postpone the fruits of the decree obtained by the decree-holder as early as on 12.7.1990. Therefore, the Executing Court considering all these aspects rightly dismissed the said petition and such dismissal does not call for any interference and it is to be confirmed. 12. In view of the discussions made above, this Civil Revision Petition is dismissed with costs. The order dated 29.8.2003 in E.A.No.265 of 2001 in E.P.No.34 of 2001 in O.S.No.70 of 1987 passed by the Additional Sub Court, Myladuthurai is confirmed. 12. In view of the discussions made above, this Civil Revision Petition is dismissed with costs. The order dated 29.8.2003 in E.A.No.265 of 2001 in E.P.No.34 of 2001 in O.S.No.70 of 1987 passed by the Additional Sub Court, Myladuthurai is confirmed. Since the E.P.No.34 of 2001 for delivery of possession is pending for more than 4 years, the Executing Court is directed to dispose the E.P.No.34 of 2001 by December, 2005.