Laxman Singh vs Basistha Pathak S/o Late Baleshwar Pathak

This revision petition has been preferred against the

order dated 05.03.2014 passed by learned Execution Munsif, Ara in

Miscellaneous Case no. 11/1999 by which he dismissed the aforesaid

Miscellaneous Case no. 11/1999.

The brief fact of the present case is that one Mostt. Jota

Kuwer filed Title suit no. 126/1991 against Jagdish Pathak and two

others for declaration that she was legally wedded wife of Baleshwar

Pathak and on the basis of the Will executed by the said Baleshwar

Pathak in her favour, she got her right and title on the disputed

properties. Furthermore, she sought relief for cancellation of two sale

deeds dated 25.01.1966 and 13.11.1966, out of which one sale deed is

said to be executed by Jagdish Pathak in favour of Brijnandan Singh

and Jainandan Singh and another is said to be jointly executed by

Jagdish Pathak and the said Mostt. Jota Kuwer in favour of Brijnandan

Singh and Jainandan Singh. She also sought relief for confirmation of

possession over the disputed properties as well as recovery of

possession, if she was found dispossessed from the disputed

properties.

The above stated Brijnandan Singh and Jainandan

Singh were defendant nos. 2 and 3 in the aforesaid Title suit no.

126/1991. It is pertinent to note here that petitioner nos. 1 and 2 are

sons of the aforesaid Brijnandan Singh whereas petitioner nos. 3 and 4

are sons and petitioner no. 5 is wife of above stated Jainandan Singh.

Summons were sent to the defendants of Title suit no.

126/1991 but they could appear in the aforesaid Title suit no.

126/1991 only after substituted service. However, even after

appearance in the aforesaid suit, defendants of Title suit no. 126/1991

did not file any written statement and accordingly, the aforesaid suit

was heard ex parte and ex parte decree was passed by the concerned

court on 15.05.1997. It is also pertinent to mention here that during

the pendency of the aforesaid title suit, original plaintiff, namely,

Mostt. Jota Kuwer died and in her place, her son Basistha Pathak and

married daughter Sona Devi were substituted in her place and have

been made opposite party nos. 1 and 2 respectively to this petition

whereas sons of late Jagdish Pathak, namely, Baidyanath Pathak and

Vimal Kumar Pathak alias Nirmal Kumar Pathak have been made

opposite party nos.3 and 4 to this petition. After pronouncement of

judgment and decree in Title suit no. 126/1991, Execution case no.

26/1997 was filed for execution of the aforesaid judgment and decree.

In the aforesaid execution proceeding, petitioners appeared and filed a

petition for dismissal of Execution case on the ground that defendant

no. 1 of Title suit no. 126/1991 had died in the year 1992 but during

the pendency of Title suit no. 126/1991, his legal heirs were not

brought on record and, therefore, judgment and decree dated

15.05.1997 passed in Title suit no. 126/1991 was a nullity and

Execution case no. 26/1997 can not proceed. The aforesaid petition of

the petitioners was rejected by the Execution court vide order dated

04.03.2003 which was challenged before this court in Civil Revision

no. 785/2003 which was disposed of by this court vide order dated

16.4.2004 directing the court below to make enquiry regarding actual

date of death of defendant no. 1 and pass a fresh order. After that

learned Execution Munsif, Ara took the evidence of the parties and

passed the order dated 05.03.2014 holding that defendant no. 1 of

Title suit no. 126/1991 had died in the year 1992 but the judgment and

decree passed in Title suit no. 126/1991 was not a nullity and

dismissed Miscellaneous Case no. 11/1999 against which the present

petition has been filed.

Learned counsel appearing for the petitioners would

submit that admittedly, in Title suit no. 126/1991 judgment and decree

was pronounced ex parte on 15.05.1997 and the execution court found

that defendant no. 1 of the aforesaid Title suit no. 126/1991 died in the

year 1992. He would further submit that admittedly, legal heirs of

defendant no. 1, namely, Jagdish Pathak were not brought on the

record of Title suit no. 126/1991 and judgment and decree in the

aforesaid Title suit no. 126/1991 was pronounced against a dead

person which was nullity. He would further submit that in Title suit

no. 126/1991, original plaintiff had sought principal relief against

original defendant no. 1, namely, Jagdish Pathak. He would further

submit that sale deeds in question were executed by the aforesaid

Jagdish Pathak individually as well as jointly with original plaintiff of

Title suit no. 126/1991 and, therefore, aforesaid Jagdish Pathak was a

necessary party to the aforesaid suit but his legal heirs did not get any

opportunity to contest the suit. He would further submit that it is

obvious from the aforesaid facts that the suit filed by the plaintiff

Mostt. Jota Kuwer was abated against defendant no. 1, namely,

Jagdish Pathak in the year 1992 and, therefore, judgment and decree

passed in Title suit no. 126/1991 was not executable but the learned

court below did not pay any heed towards the aforesaid fact and

having relied upon a decision reported in 2003 (3) PLJR page 675

(wrongly mentioned in impugned order as BBCJ 2001 Volume I page

670) rejected the petition filed on behalf of the petitioners. He would

further submit that the decision reported in 2003 (3) PLJR page 675

( Md. S. Imam vs. Rai Bharat Kumar & ors ) is not applicable in the

present case because in that case, petition under Order XXII Rule 4

(4) of the CPC was filed but the same was rejected. He would further

submit that in the present case, admittedly, no step was taken on

behalf of the plaintiff of Title suit no. 126/1991 to bring legal heirs of

deceased nor any petition for exemption was filed and, therefore, the

above stated decision is not applicable in the present case.

Learned counsel relied upon a decision reported in (2009)

14 SCC page 294 (T. Gnanavel Vs. T.S.Kanagaraj and another) in

which their lordships held that under Order XXII Rule 4 (4) of the

CPC clearly states that exemption could be taken only by the court

before the judgment is pronounced and not thereafter, and

furthermore, their lordships held that failure to bring the legal heirs of

a deceased would be a nullity and no judgment and decree can be

passed against a dead person. He also relied upon a decision reported

in AIR 1962 SC page 89 ( State of Punjab vs Nathu Ram ) in which

at para 4, their lordships held that if the court can deal with the matter

in controversy so far as regards the rights and interests of the

appellant and the respondents other than the deceased respondent it

has to proceed with the appeal and decide. It is only when it is not

possible for the Court to deal with such matters, that it will have to

refuse to proceed further with the appeal. Learned counsel would

further submit that it is an admitted position that prior to filing of Title

suit no. 126/1991, opposite party no.1 brought Title suit no. 66/1970

against Jagdish Pathak and others for declaration of right, title and

recovery of possession of same property and the aforesaid title suit

was dismissed by learned Execution Munsif, Ara vide judgment dated

19.8.1975 and in that judgment, learned Execution Munsif, Ara held

that sale deeds executed by Jagdish Pathak as well as original plaintiff

of Title suit no. 126/1991 were genuine and legal and, therefore,

original plaintiff of Title suit no. 126/1991 had no right to raise the

aforesaid issue again. He would further submit that learned court

below has committed error in passing the impugned order and,

therefore, the impugned order is liable to be set aside.

On the other hand, learned counsel appearing for opposite

party nos. 1 and 2 would submit that original defendant no. 1, Jagdish

Pathak as well as Brijnandan Singh and Jainandan Singh, the

ancestors of the petitioners, had appeared in Title suit no. 126/1991

but they did not file any written statement nor contested the aforesaid

suit and, therefore, the decision rendered by Hon''ble Division Bench

of this court in case of Md. S. Imam (Supra) is applicable in the

present case. He would further submit that neither the petitioners nor

their ancestors challenged the judgment and decree dated 15.5.1997

passed in Title suit no. 126/1991 and likewise, legal heirs of Jagdish

Pathak also not challenged the judgment passed in Title suit no.

126/1991 and admittedly, the aforesaid judgment and decree passed in

Title suit no. 126/1991 has already attained its finality. He would

further submit that legal heirs of Jagdish Pathak were brought on

record in Execution case no. 26/1997 but they never challenged

execution of the decree passed in Title suit no. 126/1991 rather only

the petitioners challenged execution proceeding when they lost Title

suit no. 126/1991. He would further submit that Jagdish Pathak was

not a necessary party of Title suit no. 126/1991 and, therefore, even if

Jagdish Pathak died during the pendency of Title suit no. 126/1991

and his legal heirs were not brought on record, then also, the aforesaid

suit was not abated. He cited the decision of Tej Narain Singh alias

Bhukloo Raut vs. Dr. Krishna Kant Singh and others reported in

1986 PLJR page 658.

Certain facts are admitted in this case. It is an admitted

position that original plaintiff, namely, Mostt. Jota Kuwer filed Title

suit no. 126/1991 against three persons, namely, Jagdish Pathak,

Brijnandan Singh and Jainandan Singh for declaration that she was

legally weeded wife of Baleshwar Pathak who happened to be uncle

of Jagdish Pathak and for declaration of her right and title over

disputed plots on the basis of Will executed by Baleshwar Pathak in

her favour and also for cancellation of sale deeds dated 25.01.1966

and 13.11.1966 said to be executed by Jagdish Pathak individually as

well as jointly with original plaintiff Mostt. Jota Kuwer in favour of

Brijnandan Singh and Jainandan Singh. It is also an admitted position

that after substituted service, original defendants of Title suit no.

126/1991 appeared in the aforesaid title suit but they did not file any

written statement nor contested the aforesaid suit resulting ex parte

judgment and decree in the aforesaid suit. It is also an admitted

position that after pronouncement of judgment and decree, Execution

case no. 26/1997 was filed but the execution proceeding was opposed

by the petitioners on the ground of death of Jagdish Pathak during the

pendency of the aforesaid Title suit no. 126/1991. It is also an

admitted position that learned Execution Munsif, Ara enquired the

date of death of Jagdish Pathak and came to the conclusion that

Jagdish Pathak died in the year 1992 and the judgment and decree in

Title suit no. 126/1991 was pronounced ex parte on 15.05.1997 i.e.

after death of Jagdish Pathak.

I would like to refer Order XXII Rule 4 (4) of the CPC which says that in case of death of one of several defendants or of sole defendant- ( 1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survive, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) -------------------------

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the diseased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it had been pronounced before death took place.

From bare perusal of the aforesaid provisions, it is

obvious that if a defendant dies and the right to sue does not survive

against remaining defendants, the court shall cause the legal

representatives of the deceased defendant to be made party on an

application made in that behalf and furthermore, the aforesaid

provision makes it clear that if the sole defendant dies and a right to

sue survives, then also, the court shall cause legal representatives of

the deceased defendant to be made party on an application filed for

bringing legal representatives of deceased defendant and in both the

circumstances, the court, having brought legal representatives of the

deceased defendant on record, shall proceed with the suit.

Furthermore, Order XXII Rule 4 (3) of the CPC goes to show that if

no application is made under sub-rule (1) of the CPC within the time,

the suit shall abate as against the deceased respondent. However,

Order XXII Rule 4 (4) of the CPC was inserted in the Code of Civil

Procedure (Amendment Act ) on 01.02.1977 and Order XXII Rule 4

(4) of the CPC gives a discretion to the court to exempt the plaintiff

from the necessity of substituting the legal representatives of any such

defendant who has failed to file a written statement or who, having

filed it, has failed to appear and contest the suit at the hearing; and

judgment may, in such case, be pronounced against the said defendant

notwithstanding the death of such defendant and shall have the same

force and effect as if it had been pronounced before death took place.

Therefore, it is apparent from Order XXII Rule 4 (4) of the CPC that

if a defendant fails to file written statement or fails to contest the suit,

the judgment may be pronounced against him even though such

defendant dies during the pendency of the suit and the judgment shall

have the same force and effect as it has been pronounced before his

death.

In the present case, admittedly, deceased Jagdish Pathak

appeared in Title suit no. 126/1991 but neither filed any written

statement nor contested the aforesaid title suit. It is also an admitted

position that the remaining original defendants, the ancestors of

petitioners, of Title suit no. 126/1991 had also appeared in the

aforesaid title suit but they, too, neither filed any written statement nor

contested the aforesaid title suit. It is also an admitted position that no

petition was filed on behalf of the plaintiff of the aforesaid title suit

under Order XXII Rule 4 (4) of the CPC and admittedly, court

proceeded with the aforesaid title suit and pronounced the judgment

and decree after death of original defendant Jagdish Pathak.

It is also an admitted position that original plaintiff

Mostt. Jota Kuwer had brought Title suit no. 126/1991 for cancellation

of sale deeds in question and for declaration of her legal status as wife

of Baleshwar Pathak. It is admitted case of the parties that sale deeds

in question were executed much prior to filing of Title suit no.

126/1991 and according to the case of the petitioners itself, at the time

of filing of Title suit no. 126/1991 Jagdish Pathak had already

transferred his right, title and interest of disputed properties to the

ancestors of the petitioners. It is important to note here that Mostt.

Jota Kuwer sought relief for declaration of her right and title over the

disputed properties on the ground of execution of Will deed by

Baleshwar Pathak in her favour. It is not in dispute that the aforesaid

Will was probated in probate case which was subsequently, converted

into title suit and in that title suit, it was incidentally held that Mostt.

Jota Kuwer was legally wedded wife of Baleshwar Pathak and,

therefore, when original defendant no. 1, Jagdish Pathak had already

transferred disputed lands to ancestors of the petitioners, in my view,

he was not necessary party to the aforesaid suit.

Moreover, it is an admitted position that not only

aforesaid Jagdish Pathak but ancestors of the petitioners also appeared

in the aforesaid Title suit no. 126/1991 but they did not choose to file

written statement or to contest the aforesaid Title suit no. 126/1991. In

the aforesaid circumstances, in my view, even if Jagdish Pathak,

original defendant no. 1 in Title suit no. 126/1991, died during the

pendency of the aforesaid suit, then also, the right to sue was survived

against remaining defendants of the aforesaid Title suit no. 126/1991

and the aforesaid suit was not abated due to death of deceased Jagdish

Pathak.

It is an admitted position that legal heirs of deceased

Jagdish Pathak have not raised any objection in Execution case no.

26/1997, though it would appear from the impugned order that son of

deceased Jagdish Pathak was examined in Miscellaneous Case no.

11/1999 as witness on behalf of the petitioners at the time of enquiry

of actual date of death of the deceased Jagdish Pathak. It is also an

admitted position that ancestors of the petitioners lost Title suit no.

126/1991 and after that when Execution case no. 26/1997 was filed,

petitioners raised question of abatement, particularly, in the

circumstance, when their ancestors had already lost the aforesaid Title

suit no. 126/1991. Execution case no. 26/1997 had been filed for

recovery of possession of the disputed properties and it is an admitted

case of the petitioners that after execution of the sale deeds, their

ancestors came in possession and, therefore, aforesaid Execution case

no. 26/1997 had been filed for execution of the decree against the

petitioners and not against legal representative of deceased Jagdish

Pathak and moreover, legal heirs of deceased Jagdish Pathak have not

challenged the execution of the decree which is voidable only against

them and, therefore, in my view, petitioners have no right to say that

in Title suit no. 126/1991, decree was passed against a dead person.

So far as judgment of Title suit no. 66/1970 is

concerned, in my view, petitioners can not raise the aforesaid point

either before this court or before execution court and they ought to

have raised the aforesaid point in Title suit no. 126/1991 but ancestors

of the petitioners failed to do so and, therefore, even if in Title suit no.

66/1970 any finding was given in respect of sale deeds in question, the

said finding would not help the petitioners in this revision petition.

On the basis of the aforesaid discussions, I am of the

opinion that there is no illegality, irregularity, impropriety into the

impugned order and accordingly, this civil revision petition stands

dismissed and the impugned order dated 05.03.2014 passed in

Miscellaneous Case no. 11/1999 is, hereby, confirmed.