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2006 DIGILAW 1075 (RAJ)

Bheru Singh v. M/s. Davendra Kumar Mool Chand

2006-04-04

DALIP SINGH

body2006
JUDGMENT 1. - This revision petition has been filed against the order dated 10.10.2002 by which the application under Section 50 CPC filed by the non-petitioner decree holder was allowed. 2. A decree dated 22.1.1980 was passed against the deceased-tenant Bheru Singh. In the said suit after service upon the defendant Bheru Singh, Bheru Singh filed his vakalatnama on 27.9.1976 and the written statement was filed on 18.10.1976. After the aforesaid written statement was filed, the issues were framed on 24.1.1977. These facts are available on the certified copies which were submitted by the learned counsel for the petitioners. An execution application was filed for execution of the decree dated 22.1.1980 and the first execution application was dismissed as not pressed. Thereafter, the second execution application was filed and along with the same an application under Section 50 CPC was also filed by the decree-holder non-petitioner on 16.5.1988. In the said application, it was mentioned that earlier an execution was filed in the Execution Claim Case No. 17/1981 which was dismissed as not pressed on 31.10.1987. It was mentioned in para 4 of the application that judgment-debtor Bheru Singh has died before the satisfaction of the decree and as such it is necessary that the legal representatives of Bheru Singh be impleaded as parties. In para 2 of the said application, it was mentioned that when the warrant for possession was issued in pursuance of the Execution Case No. 17/1981, the sons of deceased-judgment debtor appeared in the court and submitted an application that Bheru Singh has already expired. 3. A reply to the aforesaid application was filed by the petitioners and it was submitted in para 4 that judgment-debtor Bheru Singh died on 2.10.1978 before the suit was decreed on 22.1.1980. In the light of the aforesaid averments made in the reply, it was submitted that decree which was passed on 22.1.1980 in Civil Suit No. 128/1986 against the deceased judgment-debtor Bheru Singh was null and void and the same cannot be executed. The learned executing court by the impugned order dated 10.10.2002 allowed the application filed by the non-petitioner decree-holder and ordered for the issuance of warrant of possession against the legal representatives. It is the aforesaid order dated 10.10.2002 which has been challenged before this court in revision petition. 4. The learned executing court by the impugned order dated 10.10.2002 allowed the application filed by the non-petitioner decree-holder and ordered for the issuance of warrant of possession against the legal representatives. It is the aforesaid order dated 10.10.2002 which has been challenged before this court in revision petition. 4. The submission of the learned counsel for the petitioner is that the learned executing court has committed an error in allowing the application under Section 50 CPC and impleading the legal representatives of the I deceased judgment-debtor, in the facts and circumstances of the present case, when the judgment- debtor had expired during the pendency of the suit before the decree was passed on 22.1.1980. It is submitted that as mentioned in the reply to the application under Section 50 CPC that since the deceased Bheru Singh has died on 2.10.1978 and, therefore, the decree was a nullity. It is submitted that learned executing court has committed an error in relying upon the provisions of Order 22 Rule 4(4) CPC, in the facts and circumstances of the present case. It is submitted that the provisions of Order 22 Rule 4 sub-rule (4) are not applicable in the facts and circumstances of the present case as the deceased Bheru Singh was a defendant in the suit and has not only filed his written statement but contested the same and on the pleadings, issues were framed and even the plaintiffs witnesses were cross examined. But no evidence was led on account of the fact that deceased defendant died on 2.10.1978. It is, therefore, submitted that in the facts and circumstances, the provisions of sub-rule (4) of Rule 4ORDER22 are not attracted. Even otherwise, it was submitted that it is for the plaintiff under the aforesaid provisions to seek exemption by applying the same and in the facts and circumstances no such exemption was sought for or granted. Consequently, it is submitted that the decree is a nullity and the learned executing court has committed jurisdictional error in allowing the application under Section 50 CPC. 5. Learned counsel for the non-petitioner decree-holder, on the other hand, has submitted that the deceased defendant-judgment-debtor Bheru Singh did not in fact expire before the decree was passed and that the decree in such a situation cannot be termed to be a nullity. 5. Learned counsel for the non-petitioner decree-holder, on the other hand, has submitted that the deceased defendant-judgment-debtor Bheru Singh did not in fact expire before the decree was passed and that the decree in such a situation cannot be termed to be a nullity. He has further submitted that learned executing court has considered the material on record and held that judgment-debtor Bheru Singh had not died on 2.10.1978 on the basis of the fact that the counsel for the defendant judgment-debtor Bheru Singh in Suit No. 128/1976 regularly appeared in court upto 15.1.1980 and conducted the suit on behalf of the defendant so much so as on 6.11.1979, in spite of the fact that defendant was not present, the counsel for the defendant conducted cross examination of Mool Chand, the plaintiff's witness. He has also drawn the attention of the court to the fact that death certificate has been filed before the executing court In which not only there are interpolations but the fact that the same has been issued in the year 1995 was also mentioned, as such, it is submitted that question regarding the death of judgment- debtor having occurred prior to the passing of the decree on 22.1.1980 is an afterthought. It is submitted that in case the death had actually occurred in the year 1978, the registration ought to have been made at that point of time. He further submits that the date of death which has been mentioned was originally mentioned as 2.10.1988 which has been overwritten as 2.10.1978. He, therefore, submits that said certificate cannot be relied upon for the death of the judgment-debtor Bheru Singh. 6. I have considered the rival submission. So far as the submission of the learned non-petitioner decree-holder that certificate could not be relied upon to determine the date of death of judgment-debtor is concerned, a look at the pleadings goes to show that the non-petitioner did not controvert the date of death, as given out by the petitioner, of the deceased judgment-debtor Bheru Singh as 2.10.1978. In that view of the matter, when the decree holder does not dispute the date of death, the question of holding an inquiry with regard to the date of death does not arise. In that view of the matter, when the decree holder does not dispute the date of death, the question of holding an inquiry with regard to the date of death does not arise. Nonetheless, a perusal of the certificate on which reliance has been placed by the learned counsel appearing on behalf of the non-petitioner decree-holder is concerned, in so far as the cutting of figures 88 to 78 is concerned, in the facts and circumstances of the present case, the same is immaterial as in the year 1987 itself the non-petitioner had got his earlier Execution Petition No. 17/1981 dismissed as not pressed in the year 1987; as mentioned by the decree-holder in his application under Section 50 CPC. The order dismissing the execution petition as not pressed was passed on 31.10.1987 and the execution application was dismissed as the son of the deceased objected to the execution of decree stating that judgment-debtor had already expired. Thus, when in the year 1987 i.e. prior to the year 1988 it was revealed to the decree-holder that judgment-debtor has expired, the interpolation, to my mind, if at all it can be termed as interpolation, has no bearing, in the facts and circumstances of the case as prior to the year 1988, the fact relating to the death of judgment-debtor was known to the non-petitioner on 31.10.1987 when the first execution application was dismissed as not pressed due to death of the judgment-debtor. Moreover, the overwriting of 88 to 78 appears to be a correction in the facts and circumstances mentioned above. Be that as it may, in the facts and circumstances of the present case, which I have already mentioned above, when the decree-holder has not controverted the date of death as given out in the reply to the application under.50 CPC, there was no room for any inquiry regarding the date of death of the judgment-debtor. 7. In the instant case, the order impugned dated 10.10.2002 has been passed on the ground that under the provisions of Order 22 Rule 4(4) CPC, the decree was still executable and was not a nullity. Consequently, the application under Section 50 is allowed. 8. 7. In the instant case, the order impugned dated 10.10.2002 has been passed on the ground that under the provisions of Order 22 Rule 4(4) CPC, the decree was still executable and was not a nullity. Consequently, the application under Section 50 is allowed. 8. The relevant provisions of sub-rule (4) of Rule 4ORDER22 reads as under: "(4) The Court, whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." 9. A perusal of the aforesaid provision goes to show that the same is applicable where the defendant has not filed the written statement or having filed it has failed to appear and contest the suit at the time of hearing, in such a situation, the court may exempt the plaintiff from the necessity of substituting the legal representatives. In the facts and circumstances of the present case, the deceased defendant Bheru Singh had filed the written statement, controverted the plaint averments on the basis of which issues were framed and he contested the suit, so much so, the plaintiff witnesses were cross-examined. Nonetheless, most important feature is that neither any exemption was prayed for nor granted by the court, as required by sub-rule (4) of Rule 4ORDER22 CPC. In this connection, reference may be made to the judgment of Hon'ble Supreme Court in the case of Zahirul Islam v. Mohd. Usman and Others reported in (2003) 1 SCC 476 wherein their Lordships having held that exemption from bringing on record the legal representatives is not automatic and that the plaintiff has to seek the permission of the court under Order 22 Rule 4(4) CPC. The relevant portion of the said judgment may be extracted herein: "6. Usman and Others reported in (2003) 1 SCC 476 wherein their Lordships having held that exemption from bringing on record the legal representatives is not automatic and that the plaintiff has to seek the permission of the court under Order 22 Rule 4(4) CPC. The relevant portion of the said judgment may be extracted herein: "6. A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment has been pronounced before the death took place. 7. In the instant case, it is stated by the learned counsel appearing for the appellant that no permission contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of the deceased Defendant 2. From the order under challenge also, it does not appear that any such permission was sought or granted by the court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit." 10. In the facts and circumstances of the present case, it is also not disputed that no exemption was either prayed for nor granted and, therefore, to my mind, the provisions of sub-rule (4) of Rule 4ORDER22 CPC have no application. 11. Consequently, the impugned order which is based upon the provisions of sub-rule (4) of Rule 4ORDER22 CPC cannot sustain. 12. Consequently, the revision petition is allowed. The impugned order dated 10.10.2002 suffers from jurisdictional error and is liable to be set aside and is hereby set aside. The application under Section 50 CPC filed by the non-petitioner decree-holder accordingly stands dismissed. 13. In the facts and circumstances, the parties shall bear their own costs.Revision allowed - Impugned order set aside. *******