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2013 DIGILAW 100 (PAT)

Nootan Mishra v. state of Bihar

2013-01-22

SHEEMA ALI KHAN

body2013
ORAL ORDER Heard Counsel for the parties. 2. The petitioners have challenged the order of the Sub Judge IV, Bhagalpur dated 23.07.2012 by which the Court below has rejected a petition filed on 18.06.2011 under Order 22 Rule 4 of the Civil Procedure Code. 3. The facts of the case are that a title partition suit was filed, numbered as 186 of 1984. In the partition suit, there was a compromise between the plaintiffs and defendants 2 and 2(a), which was accepted by the Court below. During the pendency of the suit, the defendants 2 and 2(a) had executed a Power of Attorney in favour of one Sanjeev Kumar Mishra. In the mean time, they compromised the suit. A Misc. Case No. 13 of 1996/05 of 2002 was filed on behalf of the purchasers from defendants 2 and 2(a), claiming that, the suit could not be compromised as the other members of the family had not joined the compromise petition and had prayed for recall of the order by which the compromise decree had been recorded. The Misc. case was dismissed by the Sub Judge V, Bhagalpur vide its order dated 07.06.2002. 4. The order in Misc. case aforesaid was challenged before this High Court by filing Civil Revision No. 945 of 2002 by the petitioners which was allowed by order dated 21st May, 2004 and the order dismissing the misc. case was set aside. The defendants 2 and 2(a) being aggrieved by the aforesaid order moved before the Supreme Court by filing Civil Appeal No. 2728 of 2006. The order of the High Court was reversed and the appeal was allowed by order dated 15th April, 2011. Thereafter, Review Petition (C) No. 1573 of 2011 was filed before the Supreme Court taking several grounds and also stating that the respondents 7, 13 and 15 had died during the pendency of the Civil Appeal No. 2728 of 2006. The Supreme Court, after going through the review petition, was not inclined to review the judgment dated 15th April, 2011, however in the facts and circumstances of the case, the Supreme Court directed that “the Civil Appeal stands abated qua respondent Nos. 7, 13 and 15 in the Civil Appeal since their legal representatives were not brought on record”. 5. A few facts may be highlighted; one of them being that the respondent no. 7 died on 03.03.2009, respondent no. 7, 13 and 15 in the Civil Appeal since their legal representatives were not brought on record”. 5. A few facts may be highlighted; one of them being that the respondent no. 7 died on 03.03.2009, respondent no. 15 died on 02.03.2010 and it is stated that the respondent no. 13 died during the pendency of the appeal (the date is not mentioned). It may also be noted that the substituted heirs or the other defendants in this case have not come forward to challenge the compromise decree before any Court on any ground whatsoever. 6. The submission on behalf of the petitioners is that since the appeal has abated against respondents 7, 13 and 15, the effect would be that the entire appeal would abate and thus, the order of the High Court passed in the writ application would revive vis-à-vis respondents 7, 13 and 15. Thus, according to the Counsel for the petitioners, the order passed in the miscellaneous case would also revive and the petitioners would have the opportunity to pursue the miscellaneous case. 7. In this background, the Court will first consider as to what would be the effect of compromise decree, which has been discussed and decided in the case of Bimal Kumar and another vs. Shakuntala Debi and Others [2012 (2) PLJR (SC) 151. The Supreme Court has observed that it is a well settled law that a preliminary decree declares the rights and liabilities, but in a given case, the decree may be both preliminary and final or partly preliminary and partly final. A compromise decree defines not only the shares but also defines the allotment of the property between the parties; therefore, it would appear that a compromise decree is a final decree. 8. The submissions on behalf of the petitioners that the entire appeal would abate ought to have been raised before the Apex Court, in any event it would appear that the Supreme Court had decided and set aside the judgment of the High Court dated 21st May, 2004 on merits holding that the reasonings given by the Court for quashing the order dated 07.06.2002 was not in accordance with law. At the time when the order of the High Court as noted above was passed on 21st May, 2004, the defendants were alive, therefore, as far as the order of the High Court is concerned, it was not passed against a dead person. At the stage when it was challenged, the defendants were alive. Therefore, it cannot be contended that the order of the High Court would revive because the entire appeal abates as per the submissions of the Counsel for the petitioners. 9. The petitioners have referred to several judgments to support his contention that if there is a possibility of conflict of a decree, then the entire suit will abate. Firstly, Counsel for the petitioners relies on the case of Ramagya Prasad Gupta and others vs. Murli Prasad and Others [ AIR 1972 S.C. 1181 ]. The facts of the case were that the Chapra Electric Supply Works Limited had a license from the Government of Bihar for the electrification of the Chapra town. Murli Prasad was the highest bidder. He along with his five partners was granted license. Later, the partnership was dissolved and new partners were introduced. A suit was filed for dissolution of the partnership and rendition of accounts. During the said suit, an intervention application was filed on behalf of some of the members of the joint family and that Paras Nath was holding 1 anna share not only as a partner of the firm, but also on behalf of the joint family. The Trial Court framed issues and after that negated the claim of Murli Prasad that he was the sole proprietor of the said firm. There was an appeal against the judgment of the Trial Court before the High Court. The High Court set aside the decree of the Trial Court and the suit of Paras Nath was dismissed. The facts reveal that several appeals were filed and in the course of the proceedings, one Jagdish Narayan died who is said to have a share in the partnership firm, no attempt was made to bring his heirs on record, subsequently, the appeal not only abated against the deceased Jagdish Narayan but the appeals abated as a whole. The facts reveal that several appeals were filed and in the course of the proceedings, one Jagdish Narayan died who is said to have a share in the partnership firm, no attempt was made to bring his heirs on record, subsequently, the appeal not only abated against the deceased Jagdish Narayan but the appeals abated as a whole. On the basis of this judgment, Counsel for the petitioners contends that the appeal before the Supreme Court would abate as a whole which would result in the revival of the order of the High Court vis-à-vis the defendants 7, 13 and 15. The facts of this case do not apply to the facts of the present case as the appellants have not derived any title or benefit from respondents 7, 13 and 15. 10 The principle has been laid down with respect to abatement in the case of Shahazada Bi and Others vs. Halimabi [ AIR 2004 S.C. 3942 as well as in the case of Sardar Amarjit Singh Kalra and Others vs. Pramod Gupta and Others [ (2003) 3 SCC 272 ]. In all these cases, the question was that the heirs or the other respondents had come forward to challenge the decree/judgment passed by the Trial Court or the High Court. In the present case, the heirs have not come forward to challenge the compromise decree. In fact, the present petitioners derive their right from the defendants 2 and 2(a) who were the persons who had entered into the compromise decree, they do not derive any right from the defendants 7, 13 or 15. The heirs of these defendants have not come forward. It is also well settled that the other defendants in the original suit could have either filed a miscellaneous case to set aside the compromise decree or filed a separate partition suit. 11. This Court finds that the reasonings given by the Sub Judge IV, Bhagalpur that the objection raised ought to have been raised before the Apex Court claims that since the heirs of the deceased respondents were not brought on record, the appeal would abate. The plea of the petitioners who are the purchasers cannot be considered by the Court below. 12. I, therefore, find no merit in this writ application and it is accordingly dismissed.