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2017 DIGILAW 296 (ORI)

V. Madhavi v. Jammula Chandrasekhar

2017-03-17

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 7.4.2014 passed by the learned Civil Judge (Senior Division), Berhampur in I.A No.40 of 2013. By the said order, learned trial court rejected the application under Section 47 CPC filed by the J.Drs. 2. V. Rama Rao, husband of the plaintiff, instituted T.S No.123 of 2000 in the court of the learned Civil Judge (Senior Division), Berhampur for declaration of title, in the alternative for a direction to the defendant no.2 to execute the registered sale deed in his favour and damages impleading the opposite parties as defendants. The defendants filed a counter-claim. The suit was dismissed, but the counter-claim of defendant no.1 was allowed. Assailing the judgment and decree, the widow of the plaintiff, petitioner herein, filed RFA No.8 of 2012 and RFA No.11 of 2013 before the learned District Judge, Berhampur. Both the appeals are sub judice. While the matter stood thus, defendant no.1 levied execution case for eviction of the plaintiff, which is registered as E.P No.14 of 2012. The J.Drs filed an application under Section 47 CPC to dismiss the execution case on the ground that during pendency of the suit, the original plaintiff died. His legal heir was substituted in the suit; but in the counter-claim no substitution was made and as such, the counter-claim abated. Learned trial court dismissed the application. 3. Heard Mr. S.S. Rao, learned counsel for the petitioner and Mr. Gautam Mishra, learned counsel for the opposite parties. 4. Mr. Rao, learned counsel for the petitioner, submitted that during pendency of the suit, the original plaintiff died. An application for substitution was filed by the legal heir of the plaintiff for substitution. The same was allowed. But then, the defendant no.1 had not taken any step for substitution of the plaintiff in the counter-claim. Thus the counter-claim abates and as such, execution case is liable to be dropped. He relied on the decision of this Court in the case of Durjodhan Jena and another v. Moti Dei and others, 47 (1979) CLT 529. 5. Per contra, Mr. Thus the counter-claim abates and as such, execution case is liable to be dropped. He relied on the decision of this Court in the case of Durjodhan Jena and another v. Moti Dei and others, 47 (1979) CLT 529. 5. Per contra, Mr. Mishra, learned counsel for the opposite parties, submitted that once the application for substitution was allowed in the suit and the legal heir was brought on record, latter had full opportunity to defend the counter-claim since both the suits and counter-claim were tried in the same proceeding and as such, no prejudice would be caused to the legal heir of the plaintiff in the counter-claim. The legal heir of the plaintiff was on record. Thus the counter-claim does not abate. He relied on the decision of the apex Court in the case of N. Jayaram Reddi and another v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393 . 6. In N. Jayaram Reddi (supra), the State of Andhra Pradesh acquired the land of the appellant and others. The land oustees accepted the compensation under protest and made an application under Section 18 of the Land Acquisition Act for reference. Learned Subordinate Judge enhanced the compensation. Both the parties felt aggrieved against the award. The State of Andhra Pradesh preferred appeal in the High Court of Andhra Pradesh. The claimants filed cross-appeal against the said award. In the cross-appeal filed by the claimants, one of the claimants died. After his death, his heir filed an application for substitution. The same was allowed. But then, the State did not take any step for substitution in the cross-appeal. The High Court of Andhra Pradesh dismissed the claimants’ appeal but allowed the Government appeal and reduced the price of the acquired land. The matter went to the apex Court. The question arose before the apex Court, as to whether omission to substitute the deceased respondent in the cross-appeal, the appeal filed by the State would abate? The apex Court held thus; “40. The following conclusions emerge from these decisions: (1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate. The following conclusions emerge from these decisions: (1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate. (2) If the legal representative is on record in a different capacity, the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding. (3) If an appeal and cross-objections in the appeal arising from a decree are before the appellate court and the respondent dies, substitution of his legal representatives in the cross-objections being part of the same record, would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would not have the effect of abating the appeal but not vice versa. (4) A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is a continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit. (5) In cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the death of a party if his legal representatives are impleaded in one appeal it will not enure for the benefit of cross-appeal and the same would abate.” 7. Taking a cue from N. Jayaram Reddi (supra), the apex Court in Organic Insulations v. Indian Rayon Corporation Ltd., (2003) 9 SCC 187 held that although sub-rule (4) of Order 8 Rule 6A CPC says that the counter-claim will be treated as a plaint, under sub-rule (2), such counter-claim has the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original suit and on the counter-claim. As the substitution has been made by the plaintiff in the suit, the legal heir of the plaintiff will have full opportunity to defend the counter-claim as both the suit and the counter-claim will be tried in the same proceeding and therefore, no prejudice would be caused to the legal heir of the plaintiff in the counter-claim. 8. The ratio in N. Jayaram Reddi (supra), applies with full force to the facts of the case. The decision cited by Mr. Rao in the case of Durjodhan Jena (supra) is distinguishable on facts. In the said case, the appellants filed T.S No.6 of 1968 against the respondents whereas respondent no.1 filed T.S. No.107 of 1968 against the appellants and other respondents. Both the suits were tried analogously. During pendency of the suit, defendant nos.5 and 10 died. The appellants applied for substitution in place of the deceased defendants and for setting aside abatement. Learned Subordinate Judge having rejected the application, the appeal was filed before this Court. Placing reliance on the decision of the Madras High Court in the case of Shankaranaraina Saralaya v. Laxmi Hengsu and others, AIR 1931 Madras 277, learned Singh Judge held that no doubt, the legal representatives of the deceased defendants had been substituted in Title Suit No.107 of 1968, but the appellants cannot derive any benefit out of that. Where two suits are independently filed, the plaintiff in one suit cannot claim benefit of the fact that the legal representatives of the deceased parties have been substituted in one suit within the period of limitation and, therefore, say that it should be taken that those legal representatives have also been substituted in place of the deceased parties in the other suit. Be it noted that the ratio in the case Shankaranaraina Saralaya (supra) was held to be not correct enunciation of law by the apex Court in N. Jayaram Reddi (supra) 9. The offshoot of the above conclusion is the order of the learned executing court is indefeasible. The order of the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. The petition, sans merit, is dismissed. No costs.