Saila Bala Bose vs Aloka Bose

Abani Mohan Sinha, J.—The short point involved in this case is whether a final decree is a nullity which was passed at the time when some of the Defendants died but after the passing of the preliminary decree. In this case the Plaintiff-revisionist instituted a suit for partition against her co-sharers and obtained a decree in preliminary form on January 30, 1974. The, final decree after acceptance of Commissioner''s report in such suit was passed on March 24, 1986. The Plaintiff filed an Execution Case being Title Execution Case No. 16 of 1987 on August 10, 1987. One of the Defendants preferred an objection u/s 47 of the CPC which was numbered as Misc. Case No. 65 of 1987 alleging, inter alia, that during the pendency of the suit and prior to the date of final decree, the original Defendant No. 2 (Kamala Bala), Defendant No. 4 (Sitanath) and Defendant No. 5 (Ram Chandra) died. The respective dates of death of such Defendants as stated are July 12, 1985, February 5, 1974 and June 27, 1980. It has further been alleged that some more Defendants who were added subsequently also died.

In the said Misc. Case, the present Petitioner in this Revision filed a written objection contending that she was kept out of the knowledge of the death of those Defendants and that the Executing Court could not go into such questions as it could not go behind the decree. The learned Assistant District Judge on consideration of the materials placed before him in the shape of death certificates held that some of the Defendants died after the passing of the final decree. Accordingly, he held that the decree against the dead persons being a nullity could not be executed. Being aggrieved by such judgment and order the'' Plaintiff-Petitioner has come up in Revision.

Sri Tarun Chatterjee, the learned Advocate representing the Petitioner in this Revision, has urged that the- rule of abatement as contained in Order 22 Rule 4 of the CPC would not apply and that the provision of Order 22 Rule 10 which relates to continuance of the suit or proceedings in case of assignment, creation or devolution of any interest during the pendency of a suit and before the final order is passed in such suit or proceeding would apply.

He has referred to a decision in support of his contention: Bhusan v. Chhabimani AIR 1948 Cal. 363 It has been held in the said decision that in a suit for partition and accounts if one of the Defendants dies after passing of a preliminary decree and his heirs are not brought on record within limitation, the suit will not abate with regard to such Defendants by reason of Order 22 Rule 4 as the provisions of the rule cannot apply to such a case. To such a case the provision of Order 22, Rule 10 will apply and the suit can be continued at any time after bringing on record the heirs of the deceased Defendant with the leave of the Court. This Division Bench followed the earlier decision of our High Court. There is no period of limitation for application of Order 22 Rule 10, i.e. for substituting a deceased party in the suit by his heirs or legal representatives. Vide para. 3 of the said decision. In a Patna case, purchaser of a property before final decree applied 53 years after a preliminary decree in partition suit for substitution of the successor-in-interest of the deceased Defendants under Order 22 Rule 10 and the Court allowed the application for Substitution Basistha v. Sankar AIR 29 Pat. 160 . There is no period of limitation if one of the several Plaintiffs died after the preliminary decree, the substitution of heirs can be made by the trial Court which passed the final decree: Ramsewak Mishra and Another Vs. Mt. Deorati Kuer and Others, In a suit for partition irrespective of the question of abatement, the Court had a discretion to allow the decree to be resurrected: Elokeshee Dasee Vs. Kunjabihari Basak,

All the above decisions clearly indicate that in a suit for partition the rights of the co-sharers are continuous till partition is effected or till any one of the co-sharers is ousted by his co-sharer effacing his claim to the property a together. When a preliminary decree in a partition suit is passed, as has been done in the present case, the rights of the co-sharers are declared and settled by the preliminary decree. The preliminary decree is given effect to by partition by metes and bounds by drawing up a decree in a final form usually in terms of Commissioner''s report or otherwise. The right title and possession which one of the erstwhile Defendants in the partition suit acquired in the preliminary decree, on his death, after such decree would pass on to his heirs, successors and legal representatives and would not be defeated on account of his death after the preliminary decree. So, it cannot be said that the decree as it was drawn up against some of the deceased Defendants would be a nullity in the special facts and circumstances occurring in this suit for partition. The right of the deceased co-sharers lies only dormant. If the Plaintiff applies for substitution of the heirs and successors of the deceased Defendants, such right would be resurrected. It is not denied that the Plaintiff had not taken such step for substitution. So, the decree, as it stands with the deceased Defendant on record, is not executable. The conclusion of the learned Assistant District Judge to this effect is correct, but his finding that the decree is a nullity is wrong and cannot be upheld.

We, therefore, dispose of this application and send back the record to the lower Court. The Plaintiff may proceed in the matter in accordance with law after taking necessary steps for substitution. No costs.

Shamsuodin Ahmed, J.

I agree.