Brahma Singh Son Of Late Nag Narain Rai v. Vijay Rai @ Vijay Kumar Rai Son Of Late Hem Narayan Rai

dismissed the application filed on behalf of the defendant No. 1 3 Patna High Court CWJC No.17849 of 2012 (4) dt.21-01-2013 under Section 47 raising the objection that the entire decree is nullity on account of non-substitution of the heirs of defendant nos. 2, 9, 10 and 11. A partition suit was filed for carving out a share, in suit premises. The suit was decreed on 27.2.1993. The defendant nos. 2, 9, 10 and 11 did not file a written statement or appear during the hearing of the case. The trial Court decreed the suit holding that the plaintiff would be entitled to 1/3rd of the suit premises, whereas the defendant 1st Set would be entitled to 1/3rd and defendant 2nd Set would be entitled to the rest of the 1/3rd share in the property. The suit was decreed ex parte, so far as rest of the defendants are concerned, the final decree was prepared on

10.12.2009. The execution case was filed in which objection has been taken that the defendants 2,9,10 and 11 have died on

4.4.2009, 5.11.2008, 23.8.1994 and on 23.8.1994. Counsel appearing on behalf of the petitioner submits that since defendant nos. 2, 9, 10, and 11 had died at the stage of preparation of final decree, and their representatives were not brought on record, the suit would abate and the decree would become non-executable. Counsel for the petitioner referred to a decision to substantiate his case, i.e. Ram Sevak Mishra & Another vrs. MT. Deorati, AIR 1962 Patna 178. This case was 4 Patna High Court CWJC No.17849 of 2012 (4) dt.21-01-2013 referred to a third Bench on difference of opinion between the two Judges hearing the matter. In the case of Ram Sevak Mishra, a suit was filed for partition. The facts were that before a preliminary decree was passed, one of the plaintiffs had died. Some of the legal representatives of the plaintiff were brought on record, whereas the widow was not added as a party. Thereafter, a final decree for partition was passed and a separate Takhta was carved out for all the plaintiffs in the partition suit. The court has considered the provisions of the Code of Civil Procedure (in short `the Code’) for brining a party on the record of the case. Order 1, Rule 10 of the Code empowers the court to add any person as a party to the suit in proper cases for the effective decision of the case. Rules 3 and 4 of Order 22 of the Code provide for substitution of heirs and legal representatives of the deceased plaintiff and defendant during the pendency of the suit and the above Rule read with Rule 11 of the Order provides for substitution of the heirs and legal representatives of the deceased appellant or respondent. Rule 10 of Order 22 of the Code makes a provision for bringing on record a person with permission of the court to whom the interest of any of the parties to the suit has devolved during the pendency of the suit. The said Rule read with Rule 11 of the Order makes provision for addition of such a party 5 Patna High Court CWJC No.17849 of 2012 (4) dt.21-01-2013 if the devolution has been made during the pendency of the appeal. The substitution of the heirs of a deceased party in a suit after passing of a final decree is not governed either by Order 1, Rule 10, or Order 22, Rules 3 and 4 of the Code and it is only Rule 10 of Order 22 under which a substitution could be made. It was categorically held in the case of Shanti Devi vs. Khodai Pd. Singh, AIR 1942 Patna 340, that there would be no abatement on account of the death of a party after a preliminary decree. Thus the effect of non-substitution of the heirs of a deceased- plaintiff/defendant before the final decree is to render the decree null and void because a decree either for or against a dead person is absolutely ineffectual and invalid. In the present case, the death took place after the preliminary decree was passed. Another important fact which may be noted is that defendant nos. 2, 9, 10 and 11 did not appear during the pendency of the suit much less file their written statement as such the case of Ram Sevak Mishra does not help the petitioner. The next case brought to the notice of this Court by counsel for the petitioner is the case of Jitendra Ballav Burdhan vs. Dhirendra nath Burdhan, reported in AIR 2004 Orissa 148. Referring to the first two cases, the court had held that the stage of final decree when the rights of the party are to be 6 Patna High Court CWJC No.17849 of 2012 (4) dt.21-01-2013 declared, opportunity should be given to the legal representatives of the deceased party to agitate their right. It was further held that in the absence of necessary party the decree would be a nullity. This judgment does not take into account the judgment of the Patna High Court which is a Division Bench judgment as two Judges have held the same view which considered the fact that the decree would be a nullity if one of the parties died before preparation of a preliminary decree. In this case the objection has been at the stage of execution, and the parties have died after the preliminary decree was passed. It is well settled law that a person who has not appeared on notice against whom the decree proceeded ex parte, cannot claim that the decree would be a nullity on the ground that the heirs of the deceased defendant against whom the decree is ex parte were not brought on record. I may refer to the case of Dhurandhar Pd. Singh vs. J P University, reported in (2001) 6 SCC 534. After considering the rival submissions and the facts of the case the Apex Court concluded that since no written statement was filed on behalf of the person challenging the decree at the stage of execution, the executing court had rightly rejected the objection raised on behalf of the party concerned. In the present case, another fact has to be borne in mind which is that the heirs of 7 Patna High Court CWJC No.17849 of 2012 (4) dt.21-01-2013 deceased had not come forward to make any claim, rather objection has been raised on behalf of defendant 1st set who has been given one-third share in the suit property. Therefore, the argument raised on behalf of the petitioner that the decree is void, is not acceptable. The trial court has rightly rejected the objection raised on behalf of the petitioner-defendant 1st set. I find no error in the reasoning of the court below and as such this writ application is dismissed. (Sheema Ali Khan, J) Prakash/-