Full Judgment Text
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PETITIONER:
SATGURU SHARAN SHRIVASTAVA
Vs.
RESPONDENT:
DWARKA PRASAD MATHUR [DEAD] THROUGH LRS. A ORS.
DATE OF JUDGMENT: 14/08/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
MAJMUDAR S.B. (J)
CITATION:
JT 1996 (7) 460 1996 SCALE (6)189
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Mr. Sushil Mr. Jain, Advocate takes notice for
respondents.
This special leave petition arises from the judgment
and order of the High Court of Madhya Pradesh, Gwalior Bench
made on May 15, 1996 in First Appeal No.17/89. The admitted
position is that one Dwaraka Prasad Mathur was a member of
the Secretarial Staff Housing Cooperative Society Plot
No.14-C was allotted to him as a member and thereon he had
constructed a house. It is the case of the petitioner that
he had entered into an oral agreement of sale with him to
purchase the house for a consideration of Rs.20000/subject
to his obtaining permission for transfer from the Society as
per the law. It is his case that he had paid up the amount
due from Dwaraka Prasad Mathur to the Society and became
member of the Society as per the resolution passed by the
Society. But before he got the possession, surprise pruned
upon him in the form of a decree of specific performance
obtained by the second respondent Narvedeshwar Prasad Saxena
in O.S.No.77-A of 1976, dated October 11,1976. So he filed
civil suit No.121-A of 1984 on the plea that both the
respondents had played fraud upon him and it was a collusive
decree and sought to avoid the decree passed in suit No.77-A
of 1976 (suit No.121-A of 1984 of the petitioner).
Admittedly pending suit both the defendants died. As far as
the first defendant is concerned, his widow Shakuntala was
brought on record as his legal representative. As regards
the second defendant, Prakash Chand Saxena, his son was
brought on record as legal representative. He is the decree
holder in the above suit No.77-A of 1976 and the judgment-
debtor is the first defendant. As far as the first defendant
is concerned, since Shakuntala also died pending suit, the
decree as against the judgment-debtor in that suit No.77-
A/76 has become final and no legal representative of her
came on record and the suit No.121A/84 got abated.
The question that arises is whether the appeal could be
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filed against dead person, namely, the first respondent?
When it was brought to the notice of the learned counsel, an
application came to be filed to delete the name of the first
defendant. It was accordingly deleted. The consequence is
that as regards the first defendant/judgment-debtor in the
above suit No.77-A/76 the decree has become final. Equally
decree of dismissal in suit No.121-A of 1984 also become
final.
The question then arises: whether the legality of the
decree against the second defendant, decree-holder in suit
No.77-A/76, can be gone into? In view of the fact that the
plea of fraud has been pleaded as against the first
defendant and the second defendant, to avoid the decree in
suit No.77-A/76, necessarily any finding that would be given
by the High Court in the appeal arising out of suit
No.121A/1984 would be inconsistent qua the first respondent.
Under those circumstances, the suit No.121-A/84 as a whole
stands abated. (As a consequence) the high court
rightly has dismissed the appeal.
Shri Bagga, learned counsel for the petitioner,
contended that by operation of Order 22, Rule 4(4), CPC as
amended by CPC Amendment Act. 1976, it is not necessary that
suit should abate as a whole. We find no force in the
contention. It is true that under the amended rules even a
counsel can give notice of the death of the parties and on
the basis thereof, the legal representatives could be
brought on record. But when the factum of the death of
Shakuntala was brought to the notice of the counsel for the
petitioner, an application came to be filed to delete the
name of the first defendant from the array of the parties
and accordingly it was allowed; consequence being that the
decree as against the first defendant in O.S. No.121-A/1984
had become final. Since it has become final, the decree as
against the second defendant’s legal representative would
became inconsistent with the decree as against the first
defendant. Therefore, the mere fact that the application
came to be filed later is of no avail and Order 22, Rule
4(4), CPC is clearly inapplicable to the facts. In this
view, it would be unnecessary for the High Court to go into
the merits in the appeal and to record any findings in that
behalf .
The special leave petition is accordingly dismissed.