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2015 DIGILAW 272 (ORI)

Jayaram v. Haramani Behera

2015-04-22

D.DASH

body2015
JUDGMENT : D. Dash, J. 1. This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Cuttack in RFA No. 143 of 2007 affirming the final decree passed by the learned Second Addl. Civil Judge (Sr. Divn.), Cuttack in T.S. No. 424 of 1993. Facts necessary for the purpose are stated hereunder:-- "(a) Respondent No. 1 as the plaintiff filed the suit for partition i.e. T.S. No. 424 of 1993 against the appellants (defendant No. 1 and others) claiming shares over the properties described in the schedules of the plaint. The suit was preliminarily decreed and the preliminary decree was drawn up on 14.11.2000. (b) The defendant No. 1 thereafter filed a petition under Order 9 Rule 13 of the Code of Civil Procedure to set aside the said judgment and decree on the ground that it was passed ex parte against him and he was prevented by sufficient cause from appearing in court on that date and participating in the trial court. The same got numbered as Misc. Case No. 142 of 2000. The trial court rejected the petition on 27.6.2000 holding the decree to be a contested one and as such it was held that the provision of Order 9 Rule 13 of the Code would not come to the aid and assistance of the defendant No. 1. (c) On 6.7.2002 the plaintiff filed a petition before the trial court for making the preliminary decree final. The proceeding continued. The defendant No. 1 then carried an appeal i.e. Misc. Appeal 79 of 2002 challenging the aforesaid order of the trial court refusing to set aside the ex parte decree applying the provision of Order 9 Rule 13 of the Code. The learned District Judge in that appeal passed an order of stay of further proceeding in the suit and that was later on modified that only sealing and signing of the final decree would remain stayed. The first order was received on 3.9.2002 and the other order was received on 23.12.2002. So, final decree proceeding continued as before. (d) The learned District Judge finally allowed the above noted Misc. Appeal holding the decree to be an ex parte one so far as the defendant No. 1 was concerned and thus petition under Order 9 Rule13 of the Code was held to be maintainable. So, final decree proceeding continued as before. (d) The learned District Judge finally allowed the above noted Misc. Appeal holding the decree to be an ex parte one so far as the defendant No. 1 was concerned and thus petition under Order 9 Rule13 of the Code was held to be maintainable. Therefore, the matter got remanded to the court below for disposal of the said petition on merit. The order of the appellate court was received on 18.7.2003. (e) The trial court recorded the evidence and after hearing the parties refused to set aside the ex parte decree holding the plea of defendant No. 1's illness as not believable. This order was again challenged by carrying an appeal vide Misc. Appeal No. 97 of 2003 by the defendant No. 1. In the said appeal, the order of stay was passed on 17.5.2005 staying the sealing and signing of the final decree. That order was received by the trial court on 21.7.2005. (f) It is now pertinent to state here that in the meantime, final decree proceeding that was continuing, the court below received the report of the civil court commissioner invited objections from the parties. The defendant No. 1 filed objection. So the civil court commissioner was examined and upon hearing finally by order dated 05.07.2005 the report of the commissioner was accepted finding no such infirmity and overruling the objection of the defendant No. 1. It is also worthwhile to mention here that the defendant No. 9 (Kusuma Muduli) had never objected to the said report before acceptance of the said report by order as above. Again on 11.07.2005 the trial court heard argument and passed necessary order making the preliminary decree final mandating that the report of the commissioner, the allotment sheets and the sketch map are to form a part of the final decree. With such order, the matter was awaited directing the parties to submit stamp papers within a fortnight for the final decree to be engrossed upon the same so as to make it executable in the eye of law. On 21.07.2005 the decree was also drawn up and notified. Later, on that date, the trial court received the extract of the order passed by the appellate court in CMA No. 4 of 2005 arising out of Misc. On 21.07.2005 the decree was also drawn up and notified. Later, on that date, the trial court received the extract of the order passed by the appellate court in CMA No. 4 of 2005 arising out of Misc. Appeal No. 97 of 2003 that the sealing and signing of the final decree would remain stayed. So the matter stood at that stage. (g) The appellate court in that Misc. Appeal finally allowed the Misc. Appeal and set aside the ex parte decree against defendant No. 1 subject to payment of cost of Rs. 20,000/- by the defendant No. 1 to the plaintiff on 1.12.2005 in the trial court where the plaintiff or her authorized agent would be present to receive the amount. It was further stipulated that further under no circumstances the date of payment of the cost would be deferred and in case of non-payment of cost the application for setting aside the ex parte decree would stand dismissed. Defendant No. 1 then challenged that order of imposition of cost and other stipulations by filing W.P.(C) No. 14133 of 2005. Similarly, the plaintiff also challenged that order of setting aside the ex parte decree in the Misc. Appeal on merit by filing W.P. (C) No. 9597 of 2005. On 1.12.2005, this Court passed an order of interim stay till disposal of the writ application. Those writ applications were finally dismissed. After disposal of those writ applications, the matter being put, the trial court on 20.06.2007 finally sealed and signed the final decree being engrossed on stamp papers which had been submitted." This was challenged by the defendant No. 1 in RFA No. 143 of 2007 in the court of District Judge and the appeal having been unsuccessful, present second appeal has been filed. 2. The appeal has been admitted on the following substantial question of law: "Whether the final decree passed in the absence of the legal heirs of one of the parties to the suit upon his death during the pendency of the final decree proceeding is a nullity?" 3. It is pertinent to state here that the defendant No. 1's specific challenge to the final decree is that prior to the sealing and signing of the final decree on 20.6.2007, the defendant No. 9 (Kusum Muduli) had died on 11.1.2006 and her legal representatives were not brought on record. It is pertinent to state here that the defendant No. 1's specific challenge to the final decree is that prior to the sealing and signing of the final decree on 20.6.2007, the defendant No. 9 (Kusum Muduli) had died on 11.1.2006 and her legal representatives were not brought on record. So, the final decree having been passed against one of the defendants who was by then dead and was not represented in the said proceeding, the final decree is a nullity. 4. Learned counsel for the appellant (defendant No. 1) submits that as admittedly by the time when the final decree was sealed and signed one of the defendants was dead and her legal representatives were not on record as parties, the final decree being against a dead party is a nullity. According to him, the lower appellate court has failed to appreciate this legal position properly and has erroneously confirmed the final decree instead of setting aside and remanding the matter to the trial court for proceeding further with the final decree proceeding for its culmination in accordance with law. The ground assigned that all formalities being over before death of defendant No. 9 and when nothing was done after the said death, and just the final decree being sealed and signed, the death of defendant No. 9 is of no significance and in no way render the final decree, a nullity is seriously challenged. It is argued that the appellate court's reasoning is based on assumption that said legal representatives of the defendant No. 9 would not have done anything. Therefore, he urges that the lower appellate court's order is untenable in the eye of law. 5. Learned counsel for the respondents on the other hand supports the order of the lower appellate court reiterating the grounds on which there has been refusal to disturb the final decree. He contends that all formalities of the final decree proceeding was over and defendant No. 1's objection being overruled, he did not further questioned it. The matter was just awaiting the formal sealing and signing. Therefore, he contends that non-bringing of the legal representatives of defendant No. 9 as parties to the said proceeding at that stage is of no consequence. Relying on the decision in case of N.P. Thirugnanam (D) by L.Rs v. Dr. The matter was just awaiting the formal sealing and signing. Therefore, he contends that non-bringing of the legal representatives of defendant No. 9 as parties to the said proceeding at that stage is of no consequence. Relying on the decision in case of N.P. Thirugnanam (D) by L.Rs v. Dr. R. Jagan Mohan Rao and others: AIR 1996 SC 116 , he contends that the same principle would apply with full force to the present case that just like that in a suit or the appeal, the argument being heard and the same if posted for pronouncement of judgment when in the meantime, during this period if a party dies, there remains no need for substitution of the legal representatives. So in the case since the parties had been heard on the question of acceptance of report of the Commissioner inviting objection and that too recording the evidence holding the objection as untenable, the hearing stood concluded and sealing and signing of the final decree being engrossed on stamp paper being awaited means it was just for the purpose of giving the right to the party is to be able to execute. So, this settled principle which finds also mentioned in Order 22, Rule 6 of the Code can legally be borrowed for the purpose in the interest of justice to meet the eventuality. It is next submitted that the said defendant No. 9 was only a proforma defendant and no relief was sought for against her. So, substitution of her legal representatives was not the necessity and final decree cannot be said to be a nullity in the absence of the legal representatives of said defendant No. 9 being there on record as parties at the time of its sealing land signing being engrossed on stamp paper. 6. As I find in the instant case, the lower appellate court has lost sight of some vital factual aspects and thus has not proceeded to examine the matter in that light applying the settled law. In my considered view examining the case from those angles is very much necessary as the outcome of it may be sufficient enough to answer the substantial question of law formulated while admitting the appeal. In my considered view examining the case from those angles is very much necessary as the outcome of it may be sufficient enough to answer the substantial question of law formulated while admitting the appeal. The court below in the instant case ought to have first ascertained as to which is to be taken as the date of sealing and signing of the decree so as to conclude on fact that whether the death of defendant No. 9 was prior to it or thereafter. 7. Admittedly, in the present case on the day when the report of the commissioner was accepted, there was no order of even stay of sealing and signing of the final decree and that order came to be received by the trial court on 21.07.2005 whereas the order sheet reveals that the report was accepted on 05.07.2005 and thereafter, on 11.07.2005 after hearing argument, the preliminary decree was made final and order has been passed that the Commissioner's report with map and allotment sheets would form a part of the said final decree and it was simply awaited to be engrossed upon stamp paper to be provided by the parties which has nothing to do as regards passing the final decree but only to make the final decree executable. In fact, decree was notified on 21.07.2005 whereafter only the order of the learned appellate court dated 19.7.2005 staying the sealing and signing of the final decree was received. The death of said defendant No. 9 is said to have taken place on 11.01.2006 which is not disputed by the respondent No. 1. The settled position of law is that the date of final decree so as to be enforceable is the date when the court passes the order making the preliminary decree final upon acceptance of the report of the civil court commissioner. In the instant case thus it is to be taken to have been passed on 11.07.2005 and that is the date for computing the period of filing appeal as also the period for the levying the execution proceeding starts to run from that date as the final decree's enforceability springs up from that day. Parties by not supplying the stamp paper cannot arrest the running of the said period for above purposes. However, the decree would not be executable unless it gets engrossed on stamp paper and sealed and signed. Parties by not supplying the stamp paper cannot arrest the running of the said period for above purposes. However, the decree would not be executable unless it gets engrossed on stamp paper and sealed and signed. So once the preliminary decree is made final by order, the same stands final and is no more amenable to challenge by the parties without questioning it by filing appeal or review as the case may be. The parties right to file execution proceeding becomes barred by limitation as provided under article 136 of the Limitation Act once twelve year elapses from that date of final decree as stated above land not computable from the date of engrossment of the decree on stamp paper being sealed and signed. Therefore, without touching the contentions raised by the learned counsel for the parties and going to examine the sustainability of the reasons assigned by the lower appellate court in refusing to disturb the final decree, in the present case, the final decree cannot at all on fact be said to have been passed against a dead party as on the date of the passing of final decree being taken as per the settled law, the defendant No. 9 was living. The lower appellate court appears to have not considered this important aspect that the final decree being viewed through the legal spectrum was actually in fact not passed against a dead party i.e. defendant No. 9. In that view of the matter, it was not at all necessary to find out the justification that if such passing of final decree against a dead party is of any consequence or not in view of the fact that all required formalities were over by then. So above being the factual as well as legal position, the substantial question of law certified while admitting the appeal receives its answer in the negative. 8. Be that as it may, even accepting for a moment that the final decree was passed against a dead party i.e. defendant No. 9 without bringing her legal representatives on record, it is seen that the plaintiff along with defendant Nos. 9 and 10 were allotted with 8 annas of share over schedule 'B' and 'D' properties, 4 annas of share over schedule 'E' and 'F' properties and 1 anna of share over schedule 'C' property. 9 and 10 were allotted with 8 annas of share over schedule 'B' and 'D' properties, 4 annas of share over schedule 'E' and 'F' properties and 1 anna of share over schedule 'C' property. Accordingly, in the final decree proceeding, the civil court commissioner has made the allotment and has prepared the allotment sheets allotting the properties of that much of share over the properties under different schedules to plaintiff, defendant Nos. 9 and 10 en block. Therefore, even in the absence of the legal representatives of defendant No. 9 if any there arises no question of their deprivation and prejudicial to them. Furthermore, the interest of legal representatives of defendant No. 9 can very well said to have been substantially represented. In view of aforesaid discussion, the challenge to the final decree is wholly untenable in the eye of law. For the above reasons, the substantial question of law as stated above gets accordingly answered against the appellant. Thus now there arises no further need to address the rival submission as regards legal sustainability of the justifications given by the lower appellate court about the affect of non-substitution of legal representatives of defendant No. 1 if any, in view of completion of all formalities before the death of defendant No. 9. Even if the view rendered by the lower appellate court is not concurred with and found untenable, still for the above discussion made in the forgoing paras, it would make no difference so far as the answer to the substantial question of law is concerned standing in the negative. Resultantly, the second appeal stands dismissed and in the circumstances without cost.