Radhakrishan Biharilal vs Chatursingh Govindsingh Thakar

This revision application is directed against the judgment and order passed by the appellate Bench reversing the judgment and order of the Executing Court. The Executing Court had held that the decree for possession in favour of the dead plaintiff was a nullity and was not executable. However, the lower appellate court came to a contrary conclusion. Hence, the judgment-debtor has come in revision.

Civil Suit No. 234 of 1977 was filed by Sheth Chimanlal Popatlal through his general power of attorney holder Chatursinh Govindsinh. The suit for possession on the ground of arrears of rent came to be decreed on 21-4-1981. Thereafter, the said power of attorney holder filed the execution, application on 30-7-1981 as the power of attorney holder of Sheth Chimanlal Popatlal. In the execution application, the judgment debtor raised an objection that the plaintiff (principal) Sheth Chimanlal Popatlal had expired on 14-8-1978, about 2 years and 8 months prior to the passing of the decree on 21-4-1981 and the authority of the general power of, attorney holder had ceased with the death of the plaintiff (principal) and as the heirs and legal representatives of the principal were not brought on record and since he was the sole plaintiff, the suit had abated and no decree could have been passed in favour of the deceased plaintiff and, therefore, decree was a nullity and not executable. The Small Cause Court, in execution, upheld the objection of the judgment-debtor and dismissed the execution application.

The said power of attorney holder Shri Takusinh Govindsinh preferred appeal to the Appellate Bench of the Small Cause Court. Surprisingly, the appeal was filed as power of attorney holders of legal heirs of late Shri Chimanial Popatlal. There was no application to bring the legal heirs and representatives on record. Straightway, the appeal was preferred in this manner. That appeal has been allowed by the Appellate Bench holding that not bringing the heirs and legal representatives of the deceased plaintiff was a mere irregularity and the decree was not a nullity. If there was any error or irregularity in the judgment and decree of the trial court, the same was required to be corrected only by way of appeal or revision and the objection could not be taken in execution and the executing court could not go behind the decree and, therefore, the appeal was allowed. It is against this judgment of the Appellate Bench that the judgment-debtor has come in revision.

The learned Counsel for the petitioner judgment-debtor has raised the following contentions.

i) That the appeal by the heirs was not competent, without the abatement in the suit having been set aside and without the heirs having been brought on record in the suit, and in the execution application.

ii) That the decree in favour of the dead plaintiff is a nullity and, therefore, not executable.

There is considerable force in. both these submissions. The second submission was argued first and, therefore, it will be taken up first. The lower appellate court has observed that Chatursinh Govindsinh had given an application Ex. 12 under S. 11(4) of the Rent Act on 17-1-1980 i.e. about 11/2 years after the death of the plaintiff, describing himself as the general power of attorney holder of the executor appointed under the will executed by deceased Chimanlal Popatlal. Thus, the fact of death of the original plaintiff was before the trial court and also the fact that the same power of attorney holder was also representing the legal heirs and since both these facts were before the trial court, not bringing the legal heirs on record was a mere irregularity and therefore, the decree was not a nullity. However, it is to be noted that the original plaintiff was the sole plaintiff and he had expired on 14-8-1978. Within the period of limitation, no application was made to bring the heirs on record, within the period of limitation, no application was made to set aside the abatement. Under O. 22 R. 3, where the sole plaintiff dies, and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased to be made a party and shall proceed with the suit. However, sub-rule (2) further provides that where within the time limited by law, no application is made under sub-rule (1), the suit shall abate. Therefore, even when application Ex. 12 was made after about 16 months of the death of the original plaintiff, the suit had already abated. Therefore, it was not a question of mere irregularity where the heirs had not taken action in time in accordance with law and some defect had remained or the Court had omitted to pass formal order. Even that order on Ex. 12 would be a nullity because the suit had already abated on the death of the sole plaintiff. The view taken by the Appellate Bench that the trial court committed mistake in properly describing the plaintiff in the said judgment and that the trial court should have described the plaintiff as general power of attorney holder of executor appointed under the will executed by deceased Sheth Chimanlal Popatlal is clearly illegal. Unless and until an application is made in time and in accordance with law, there was no question of such application being considered and granted. Such application will require a judicial order after hearing both sides. If the heirs do not take care to take action in time, the trial court cannot be blamed or cannot be said to have committed any mistake. If it is mistake, it is of the heirs of the plaintiff and not of the Court. Unless and until the heirs were brought on record, the suit remained and proceeded in the name of the deceased plaintiff and, therefore, the decree was a nullity.

The Appellate Bench has relied on the judgment in the case of Abdul Azeez Sahib v. Dhanabagiammal, AIR 1983 Madras 5. In para 3 of the judgment, the Madras High Court, after referring to Calcutta and Bombay decisions upheld the contention that a decree passed in favour of a dead person is not a nullity and the fact of death not having brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making decree void ab initio. The Court further observed as under.

"Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit as one without jurisdiction and the executing court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour."

The significant fact in this case was that the legal representatives of the deceased plaintiff were added as parties with the consent of the defendant as seen in para 2 of the judgment. Secondly, the Madras judgment proceeds placing reliance on the Bombay judgment. The Bombay case Raddulal Bhurmal v. Mah.abirprasad Bisesar Kalwar, AIR 1959 Bombay 384, was a case in which one of the plaintiffs had died and other plaintiffs were surviving and the decree was in favour of all the plaintiffs. In such a case, the decree in favour of the surviving and living plaintiffs cannot be said to be a nullity in any manner whatsoever and, therefore, if the decree is in favour of several plaintiffs, one of whom had died before the decree, would not render the decree a nullity. The Division Bench of the Bombay High Court observed that from provisions of O. 22 R. 3, the Court has to find out the following facts.

1.That one of the several plaintiffs had died and

That the right to sue does not survive to the surviving plaintiff.

The above were the questions which were required to be decided in the suit and in addition also the questions of death of the plaintiff has also to be brought to the notice of the Court. The Court observed as under :

"If in such a case the Court proceeds with the case in ignorance of the fact of the death of a person and passes a decree, that decree cannot be treated as a nullity."

In the present case, the facts are simple and not in dispute and they are very much on the record of the trial court before it passed the decree. These facts are that :

The plaintiff was thesole plaintiff;

That he had died on 18-8-1978;

No application was made to bring the heirs of the deceased plaintiff on record; or to set aside the abatement.

No disclosure or application was made in time;

By operation of law, the suit had stood abated.

Therefore, this is not such a case which was before the Bombay High Court. The Madras High Court has taken the ratio of the Bombay High Court judgment where the decree was in favour of several plaintiffs and only one had died and in that context, the observation of the Bombay High Court that it may be a wrong decree cannot be mechanically applied in the case of a decree in favour of the sole plaintiff who has died before the decree. Therefore, it is not possible to agree with the view of the learned single Judge of Madras High Court in the above case which is not supported by the Division Bench judgment of the Bombay High Court on which the learned single Judge of Madras High Court has relied.

The learned Counsel for the petitioner has also relied on the judgment of Allahabad High Court in the case of Happy Valley Tea Co. v. Darshan Lai, AIR 1962 All 341. In that case, the suit was brought by the plaintiff as a ''karta'' of joint Hindu family who had died during the pendency of the suit and an application for substituting another person as ''Karta'' was made, but no order was passed on it and the suit continued in the name of the deceased plaintiff. In that suit, a consent decree was passed and it stood in the name of the deceased plaintiff. Subsequently, an order for substituting plaintiff was also passed and the decree was allowed to be amended. Even in those facts of consent it was held that the decree was a nullity because it was passed in favour of the deceased plaintiff and any order of amendment passed subsequent to the passing of the decree would not make the decree valid. It is not necessary to go to that length in the present case because there is no consent decree in the present case and there is no amendment, substitution or bringing the heirs on record even subsequently. Here, the facts are simple; that a decree has been passed in favour and in the name of the dead plaintiff. Such a decree is clearly a nullity.

On the first point also, the judgment and order of the Appellate Bench is required to be quashed and reversed. The decree is in favour and in the name of Chatursinh Govindsinh holding the general power of attorney of Sheth Chimanlal Popatlal. The execution application is also in that name and style, and the executing court has dismissed that application. The legal heirs of Sheth Chimanlal Popatlal were not parties to any of these original or execution proceedings. Therefore, they had no right of appeal and they could not have preferred appeal in their own name. They should have followed the procedure contemplated by CPC for getting themselves included in proper proceedings in the place of the deceased plaintiff and such application was required to be heard and decided in accordance with law including the law of limitation; before they could prefer the appeal to the Appellate Bench. Since they have no right to prefer an appeal in this manner directly, the appeal was incompetent and the Appellate Bench could not have entertained such incompetent appeal at the instance of the legal heirs. Therefore also, the judgment and order of the Appellate Bench is required to be quashed and reversed.

In view of the aforesaid discussion, the judgment of the Appellate Bench is required to be quashed and reversed and that of the executing court is required to be restored and the execution application is required to be dismissed. Accordingly, rule is made absolute with costs throughout.

Application allowed.