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2018 DIGILAW 102 (JK)

Krishan Chand v. Ashwani Kumars

2018-02-23

ALOK ARADHE

body2018
JUDGMENT : Alok Aradhe, J. Heard on the question of admission. 1. In this civil revision, the petitioner has assailed the validity of order dated 18.10.2016 by which the application filed by the petitioner under Order 9, Rule 13 of the Civil Procedure Code that the matter had abated, as the legal heirs of Shri Prabhdayal and Smt. Dhani Devi, have not been brought on record, has been dismissed by the trial Court. 2. Facts giving rise to the filing of the instant civil revision briefly stated are that the petitioner filed a suit for declaration that he is the legal heir of the deceased Shri Nand Lal. In the aforesaid civil suit, Dev Raj and Prabhdayal were the defendants. They entered their appearance, contested the suit and filed the written statement. During the pendency of the suit Dev Raj died and his legal representatives brought on record. However, his legal representatives did not appear and they were set ex-parte. Thereafter, the trial Court vide judgment and decree dated 17.05.2005 decreed the suit of the petitioner. 3. Thereafter, one of the legal representatives of Dev Raj, namely, Ashwani Kumar, defendant No. 1 herein, filed an application under Order 9, Rule 13 of the Civil Procedure Code for setting aside the judgment and order dated 17.05.2005. In the aforesaid proceedings, Prabhdayal, who did not file any application for setting aside the ex-parte judgment and decree, was arrayed as defendant No. 2, also died on 20.06.2009. However, his legal representatives were not brought on record. Thereafter, the petitioner filed an application for dismissal of the proceedings/application under Order 9, Rule 13 of the Civil Procedure Code as having abated inasmuch as the legal heirs of Prabhdayal, had not been brought on record. The trial Court vide impugned order dated 18.10.2016 read with order dated 26.11.2016 dismissed the application preferred by the petitioner. In the aforesaid factual background, the petitioner has approached this Court. 4. Learned counsel for the petitioner submitted that the trial Court ought to have appreciated that there was a possibility of conflicting judgment and decree, as the judgment and decree was binding against one of the defendants, namely, Prabhdayal and, therefore, one of the legal representatives of Dev Raj could not be permitted to question the judgment and decree. 4. Learned counsel for the petitioner submitted that the trial Court ought to have appreciated that there was a possibility of conflicting judgment and decree, as the judgment and decree was binding against one of the defendants, namely, Prabhdayal and, therefore, one of the legal representatives of Dev Raj could not be permitted to question the judgment and decree. In support of his submissions he has placed reliance on the decisions of the Supreme Court in the cases of Sri Chand and others vs. M/s. Jagdish Pershad Kishan Chand and others, 1966 AIR (SC) 1427 and Ramagya Prasad Gupta and others vs. Murli Prasad and others, 1972 AIR (SC) 1181. Further, in support of his submission that the principle of abatement applies to the proceedings under Order 9, Rule 13 of the Civil Procedure Code, learned counsel for the petitioner referred to section 144 of the Civil Procedure Code. 5. The provisions of the Civil Procedure Code apply to the proceedings under Order 9, Rule 13 of the Civil Procedure Code in view of the section 144 of the Civil Procedure Code. It is not in dispute that by the judgment and decree dated 17.05.2005, the petitioner has been held to be legal heir of Nand Lal and against the aforesaid judgment and decree, the defendant No. 2, namely, Prabhdayal has not filed any application, therefore, the judgment and decree insofar as it pertains to the legal representatives of Prabhdayal has attained finality. It is also pertinent to mention here that during the pendency of the earlier civil suit one of the defendants, namely, Dev Raj, died and his legal representatives were brought on record, however, they were set ex-parte. Respondent No. 1 herein, namely, Ashwani Kumar, one of the legal representatives of Dev Raj, filed an application under Order 9, Rule 13 of the Civil Procedure Code for setting aside the judgment and order dated 17.05.2005. Respondent No. 1 herein, namely, Ashwani Kumar, one of the legal representatives of Dev Raj, filed an application under Order 9, Rule 13 of the Civil Procedure Code for setting aside the judgment and order dated 17.05.2005. The Supreme Court in Sri Chand and others vs. M/s. Jagdish Pershad Kishan Chand and others (supra), in paragraph 7 while n referring the decision of the Supreme Court in the case of State of Punjab vs. Nathu Ram, (1962) 2 SCR 636 , has held as follows: “If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it; otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily the consideration which will weigh with the Court in deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court and the tests to determine this have been described thus: (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore, which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate Court cannot in any way modify that decree directly or indirectly. The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate Court cannot in any way modify that decree directly or indirectly. When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated.” Similar view in the case of Ramagya Prasad Gupta and others vs. Murli Prasad and others (supra) has been taken by the Supreme Court. 6. In view of the aforesaid enunciation of law, it is evident that the trial Court has not taken into account the fact that in case it proceeds with the application under Order 9, Rule 13 of the Civil Procedure Code and set aside the same, it may give rise to conflicting judgment. Therefore, the impugned order suffers from jurisdictional infirmity as well as error apparent on the face of the record. In the result, the impugned order is quashed and the proceedings initiated by Ashwani Kumar defendant No. 1 is held to be abated. Accordingly, the civil revision is allowed.