C.R.P. No. 110 of 2007. Case: Suren Prasad Jaiswal @ Suren Jaiswal Vs Santibai Jaiswal and others. High Court of Orissa (India)
| Case Number | C.R.P. No. 110 of 2007 |
| Counsel | For Appellants: M/s. Ashok Mukherji, Sr. Advocate G.Mukherji, P.Mukherji, A.C. Panda, M.R.Barik & S.Patra, Advs. and For Respondents: M/s. A.K.Nanda, G.N.Rana, S.K.Meher, Advs. |
| Judges | B. N. Mahapatra, J. |
| Issue | Civil Procedure Code, 1908 - Order 22, Rule 10(A) |
| Judgement Date | February 03, 2012 |
| Court | High Court of Orissa (India) |
Judgment:
B N Mahapatra, J.
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The petitioners, who are defendants in trial court, have preferred this Civil Revision challenging correctness of the order dated 05.10.2007 passed by the learned Civil Judge (Sr. Division), Bonai in T.S. No.21 of 1997.
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The petitioners' case in a nutshell is that opposite party Nos.1 to 3 were the plaintiffs in the trial Court and the present petitioners were the defendants therein. The plaintiffs filed T.S. No.21 of 1997 for partition of Ac.1.95 decimals of land. Defendants claimed that besides Ac.1.95 decimals, Ac.2.87 decimals of land was also liable to be partitioned as the same was acquired by joint family funds. The trial Court accepted the plea of the defendants and passed a decree in respect of total Ac.4.82 decimals of land (Ac.1.95 decimals + Ac.2.87 decimals) vide judgment dated 09.12.1998. Being aggrieved plaintiffs filed T.A. 05/1999 against the preliminary decree of the trial Court before the learned District Judge. The learned District Judge modified the preliminary decree to the extent that the land measuring Ac.2.87 decimals is not to be partitioned. On the basis of the judgment in appeal, plaintiffs started the final decree proceeding for partition of Ac.1.95 decimals of land. In the final decree proceeding, the plaintiffs impleaded the wife of defendant No.1, who died on 30.03.2003. The defendants filed objection alleging that the judgment passed in appeal is null and void as it was passed against a dead person. The learned trial Court rejected the plea of the defendants by order dated 05.10.2007 on the ground that the widow of defendant No.1 had not filed any objection in the final decree proceedings and the other objecting defendants have not challenged the appellate decree in the higher forum. Hence, the present Revision Petition.
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Mr.Ashok Mukherji, learned Senior Advocate appearing on behalf of the revision petitioners submitted that both the grounds on which the objection of the defendants have been rejected are wrong. If the appellate judgment was passed against a dead person it is null and void. No appeal is required to be filed since the defendant No.1 died on 30.03.2003 before commencement of hearing of the appeal and the judgment was passed on 21.04.2004. Further it is immaterial whether the wife of deceased Nankubai filed any objection or not. If Ac.2.87 decimal is partitioned, the objecting defendants would get a share out of it. As Ac.2.87 decimals have been excluded the objecting defendants' stand is that they would lose their share in the said property. Therefore, their objection is tenable.
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Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Budh Ram & Ors. V. Bansi & Ors., 2010 AIR SCW 5071, it was argued that abatement takes place automatically by application of law without any order of the Court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial of hearing of the case on merits. The co-owner of the property owns every part of the composite property along with other side and he cannot be held to be fractional owner of the property unless partition takes place. Courts will not proceed with an appeal when success of appeal may lead to Court's coming to decision which may be in conflict with the decision between the appellant and deceased respondent and therefore it would lead to Court's passing a decree which will be contrary to the decree which had become final. Placing reliance in the case of Lobi Dei and another vs. Kubera Balabantara and others, 64 (1987) C.L.T. 289, Mr. Mukherji further submitted that the proper course for the trial Court was to send the case to the appellate Court with report who should deal with the question of setting aside abatement and substitution/impletion of the legal representatives in place of the deceased party whereafter the matter must be sent back to the trial Court for fresh disposal in accordance with the order of remand. The abatement has to be set aside and substitution has to be allowed by the Court where the death takes place.
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Placing reliance on the judgment of this Court in Braja Behera and others vs. Gandaram Behera and other, AIR 1990 Orissa 94 it was argued that provisions of Order 22, Rule 10(A), C.P.C. are not mandatory but directory as no penal provision has been provided in the Code for non-compliance of Rule 10(A). The decision of the Hon'ble Supreme Court in the case of Mohd. Hussain (Dead) by LRS Vs. Gopibai and others, 2008(3) SCC 233 relied upon by the defendants is distinguishable wherein the Hon'ble Supreme Court observed that ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nomine in the action.
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Per contra, Mr.A.K.Nanda, learned counsel for the opposite parties submitted that before the judgment was delivered by the learned Appellate Court, defendant No.1, who is the father of other defendants, expired on...
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