The High Court can suo motu after examining the records dispose of the revision petition under Section 115, C. P. C. and death of a party does not affect the revisional powers of the High Court but even if the order of the High Court, passed in a revision petition, is treated a nullity, then also the appellate Court's decree does not merge in it and cannot become extinct. But when a sole appellant in second appeal dies, the appeal abates. There being no proceeding before it, the High Court is seized of the lis between the parties. Thus the Court lacks inherent jurisdiction and if a decree is passed in ignorance of the death of the sole appellant it would be a nullity.
11. As already stated that it is the decree of the High Court which is the only decree executable and when it is a nullity it cannot be executed.1
Rajasthan High Court
Gopal Lal vs Smt. Amba Bai And Ors. on 5 March, 1998
Equivalent citations: AIR 1998 Raj 301, 1998 (3) WLC 168, 1998 (1) WLN 253
1. Instant revision impugns the order dated May 18, 1996 of the learned Civil Judge (Junior Division), Rajsamand, whereby the application of the judgment-debtor-petitioner (for short the judgment-debtor) under Section 47 read with Order 21, Rule 34 and Section 151, C. P. C. was dismissed.2. Brief resume' of the facts is that one Radhu Lal, the father of the judgment-debtor was the defendant in a suit for specific performance instituted by one Laxmi Lal in the Court of Munsif, Rajsamand. The suit was ended in dismissal. Laxmi Lal preferred regular first appeal against the decree of the trial Court. Appellate Court (Additional) Civil Judge, Udaipur Camp, Rajsamand) allowed the appeal vide its decree dated April 18, 1978. Thereafter Radhu Lal instituted second appeal in the High Court assailing the decree of the appellate Court. During the pendency of the appeal Laxmi Lal died and his legal representatives (present non-petitioners Smt. Amba Bai and others) were brought on record. High Court, however, dismissed the appeal on merits on lay 23, 1991.
3. In Execution Case No. 3/93, the judgment-debtor Gopal, moved an application under Section 47 read with Order 21, Rule 34 and Section 151, C. P. C. to the effect that his father Radhu Lal died on December 14, 1990 and High Court passed a decree of dismissal of appeal on May 23, 1991, obviously against a dead person which is a nullity and cannot be executed. Another objection was also raised that the decree was inexecutable by the legal representatives of Laxmi Lal, without obtaining the succession certificate. The executing Court dismissed the application vide impugned order.
4. Mr. S. S. Vyas, learned counsel appearing for the judgment-debtor vehemently contended that the decree of the appellate Court merges in the decree of the High Court which was a nullity being passed against a dead person, therefore, the decree of the appellate Court has become inexecutable. It was also argued that decree cannot be executed by the legal representatives of late Laxmi Lal without obtaining the succession certificate. Reliance was placed on Gojer Brothers v. Ratan Lal, AIR 1974 SC 1380 and Jivi Ben Lavji v. Jadavji Dev Shankar, AIR 1978 Guj 32.
5. Mr. S. P. Arora, learned counsel for the non-petitioner supported the impugned order and placed reliance on Rahima Khatun v. Samser Ali, AIR 1985 Gau 40 and Bhagesh Chandra v. Laxman Das (deceased), 1997 (3) WLC (Raj) 408.
6. I have given my anxious consideration to the rival submissions and carefully gone through the impugned order.
7. Gojer Brothers v. Ratan Lal (supra) was the case where their Lordships of the Supreme Court observed thus --
"where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate Court and not of the trial Court. The reason for this rule is that in such cases the decree of the trial Court is merged in the decree of the appellate Court."
8. In the case on hand, the suit instituted by Laxmi Lal was dismissed by the trial Court. That decree was taken in first appeal where it was set aside and suit was decreed and then in second appeal the High Court, after a contested hearing dismissed the second appeal and confirmed the decree of the first appellate Court. Therefore, as per ratio propounded by the Supreme Court inGojer Brothers v. Ratan Lal (supra) the decree of the first appellate Court must be taken to have merged in the decree of High Court and it is the decree of the High Court which is the only decree executable.
9. Ratio of Rahima Khatun v. Samser Ali (supra) is not applicable in the facts of the case on hand. In Rahima Khatun's case the revision petition was filed by one Samser Ali before the Gauhati High Court. He was the sole defendant-petitioner. He had died on Sept. 2, 1982 but the High Court was not informed the death of Samser Ali and the High Court after a contested hearing dismissed the revision on Sept. 3, 1982. The revision filed by Samser Ali arose from the ejectment decree passed against him by the trial Court and confirmed by the appellate Court. In execution proceedings the L. R's. of Samser Ali raised objection seeking dismissal of the said proceedings on the ground that decree being passed against a dead person was a nullity. The executing Court dismissed the execution proceedings. The decree-holder preferred revision against the order of dismissal. It was held by Gauhati High Court that death of Samser AH did not affect the revisional powers of the High Court. The appellate Court's order did not merge in the order passed in revision, therefore the decree of the appellate Court was executable. Therefore, principles laid down in Bhagesh Chandra v. Laxman Das (supra) are not applicable in the facts of the case on hand.
10. The High Court can suo motu after examining the records dispose of the revision petition under Section 115, C. P. C. and death of a party does not affect the revisional powers of the High Court but even if the order of the High Court, passed in a revision petition, is treated a nullity, then also the appellate Court's decree does not merge in it and cannot become extinct. But when a sole appellant in second appeal dies, the appeal abates. There being no proceeding before it, the High Court is seized of the lis between the parties. Thus the Court lacks inherent jurisdiction and if a decree is passed in ignorance of the death of the sole appellant it would be a nullity.
11. As already stated that it is the decree of the High Court which is the only decree executable and when it is a nullity it cannot be executed.
12. Conclusion of the foregoing discussion is that the impugned order suffers from error of jurisdiction.
13. Consequently, the revision succeeds and is hereby allowed, the impugned order is set aside and Execution Case No. 3/93 pending in the Court of Civil Judge (Junior Division), Rajsamand, stands dismissed. No costs.
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