Anath Kumar Mahato and Others vs State of Bihar and Others

P.P. Bhatt, J.—Present writ petition has been filed under Article 227 of the Constitution of India, being aggrieved and dissatisfied with the order dated 11.11.2009, passed by learned District Judge, Bokaro in Title Appeal No. 24/2005, whereby learned District Judge (lower appellate court) set aside the judgment and decree dated 4.8.2005, passed by learned Sub Judge-II, Bokaro in Title Suit No. 54/91, as the said judgment and decree was passed against the dead person.

Learned counsel for the petitioners submits that the learned lower appellate court has not properly appreciated the facts and has committed an error while passing the said order. It is submitted that best course before the learned lower appellate court was to remand the case, while setting aside the judgment and decree, which was passed against the dead person, but, instead of doing so, learned lower appellate court set aside the judgment and decree passed by the learned court-below.

Learned counsel for the petitioners, in support of his contention, has referred to and relied upon the decision delivered in the case of Kanailal Manna and Others Vs. Bhabataran Santra and Others, .

Learned counsel for the respondents-State Government, has submitted that learned lower appellate court has not committed any error while passing the said order. It is submitted that plaintiffs ought to have taken steps for substitution of legal heirs of the deceased-plaintiff at the relevant point of time and thus, learned counsel for the respondents-State Government has tried to justify the order passed by the learned lower appellate court.

Considering the aforesaid rival submissions and having regard to the facts and circumstances of the present writ petition as well as in view of the legal proposition, which has been referred to and relied upon by the learned counsel for the petitioners, in the case of Kanailal Manna and Others Vs. Bhabataran Santra and Others, , it appears that learned lower appellate court has committed an error by not passing the order of remand, while setting aside the judgment and decree, which was passed against the dead person.

Paragraph Nos. 17, 19 and 22 of above-referred decision Kanailal Manna and Others Vs. Bhabataran Santra and Others, are relevant for the purpose of deciding the present case and the same are reproduced hereinbelow:

"(17) In our opinion in all the above cases relied on by Mr. Ghosh the distinguishing feature is that there was no abatement even as against the deceased party. None of these cases, ever considered the position as in the present case where by operation of law there had been an abatement of the proceedings not only against the party deceased but as a whole. We are of the opinion that the fact of abatement is a distinguishing feature of great importance particularly where the decree proceeds on common grounds. We are of the opinion that on the facts of the present case on the death of one of the plaintiff-respondents in the court of appeal below the appellants before the said court who are also the appellants before us could no longer have in law invited the said court to adjudicate upon matters in controversy vide 30 Cal LJ 217 : (AIR 1920 Cal 264). It has also been made expressly clear by the Supreme Court now that in such circumstances the court of appeal below could not but dismiss the appeal because of abatement against one of the plaintiff respondents on the ground of defect in the constitution of the appeal without going into merits. If that is the clear position in law it matters little whether the court of appeal below had gone on the merits and decided the appeal on such merits in ignorance of the death and the abatement. We are therefore unable to consider the judgment and decree rendered by the court of appeal below to be any way effective in law on its merits and even if the Court of appeal below had done so we must hold that the said court had done it erroneously although the error might have arisen because of ignorance of the death. On the above conclusions we must overrule the second contention of Mr. Ghosh.

(19) Before going into this question we should dispose of Mr. Mitter''s prayer before us made on behalf of his clients for setting aside the abatement on the death of Nrityataran under the provisions of Order 22, Rule 9 of the Code of Civil Procedure. We must say that it is now more or less well settled and accepted by the different High Courts that it is the court where abatement has taken place which alone is competent to deal with a prayer for setting aside the abatement. It would be sufficient to refer to one of the Bench decisions of this court in the case of Raja Promada Nath Roy Bahadur Vs. Abdul Majid Munshi and Others, and we must further say that the contrary proposition laid down by a single Bench in the case of Nabakumar Roy Chowdhury v. Prafulla Chandra Chowdhury, (1947) 51 Cal WN 654 which took no notice of the earlier Bench decision referred to above does not represent the correct view. Therefore Mr. Mitter''s prayer for setting aside the abatement before us is misconceived and we are not entitled in law to adjudicate upon the said prayer or the application filed by Mr. Mitter in support thereof before us.

(22) We are of the opinion that if we accept the contention of Mr. Ghosh and affirm the decree as passed by the trial Court we only take away a valuable right of the appellants before us to seek the remedy provided under law for setting aside the abatement consequent upon the death of one of the respondents. The statute has given him this right under Order 22, Rule 9 of the Code of Civil Procedure and it would not be just and proper to deprive the party of such a valuable right. If we have come to the conclusion that we are unable to entertain any application on behalf of the present appellants for having abatement, which has taken place in the court of appeal below, set aside it is but just and proper that we must at the same time see that he gets an opportunity to move the appropriate court with such a prayer. But if we, on the other hand, accepting the contention of Mr. Ghosh in the meantime, affirm the decision as passed by the trial court we are afraid the Court of appeal below would no longer have any scope to entertain effectively Supreme Today With All High Courts Page 6 of 7 any application for setting aside the abatement. In such circumstances, in our opinion, the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely, the ineffective decree passed by the court of appeal below should be set aside and the appeal should be remanded to the said court, keeping it open to the appellants to move the said court for an opportunity to have the abatement set aside if the appellants could satisfy the said court that they are so entitled in law. In our opinion the decision relied upon by Balaram Pal Vs. Kanysha (Kangsha) Majhi and Others, does not really go counter to the view we have taken; we are further fortified in our conclusion by the underlying principle of the Bench decision of this court in the case of Abdul Aziz and Others Vs. Lakhmi Chandra Majumdar and Others, . In that case abatement had taken place pending a second appeal in this court and this court in ignorance of death decreed the second appeal and remanded the proceedings to the court of the District Judge, who however, considered the remand order to be wholly without jurisdiction because of the abatement and he further held that the decree as passed by the lower appellate court prior to remand should be restored. On a fresh second appeal to this court Asutosh Mukherjee, J., condemned the procedure followed by the District Judge and held that the proper procedure should have been to report the fact to the Court which had passed the remand order in ignorance of the death. His Lordship further went on to allow the appeal, set aside the decree passed by the District Judge after remand to remand the case once more and then recall the same to the file of this Court so that it may be placed before the appropriate Bench which had decided the appeal on the previous occasion. In our opinion the procedure followed in the above case on principle is in consonance with the view we have taken."

In view of the aforesaid legal proposition, it is well settled principles of law that judgment and decree passed against or in favour of dead person is a nullity. As per Order-XXII, Rule-3(2) of the Code of Civil Procedure, the legal heirs of the petitioner should be substituted within the period of limitation failing which the suit shall abate. The order passed by the lower appellate court is hereby affirmed but, at the same time, the matter is required to be remanded back to the Trial Court to hear the matter afresh. Accordingly, the matter is ordered to be remitted back to the learned court-below for de novo consideration. The petitioner shall file appropriate application for setting aside abatement with a petition for condonation of delay within a period of four weeks from the date of receipt of the certified copy of the order. Thereafter, learned court-below shall decide the same keeping in mind the legal proposition discussed above.

Learned counsel for the petitioners has prayed for grant of some interim protection, but the said prayer cannot be accepted here, as the petitioners are now required to take steps for filing an appropriate application for setting aside abatement by condoning delay and substitution under Order-XXII Rule-9 of the Code of Civil Procedure. In the event of allowing such application, the petitioners will have to move appropriate application under Order-XXXIX Rule- 1 and 2 of the Code of Civil Procedure seeking injunction. As and when, such application is filed, learned court-below shall consider the same on its own merit.

With the aforesaid observations and directions, this writ petition stands disposed of.

Consequent upon the disposal of the present writ petition, I.A. No. 337 of 2015 also stands disposed of.