The Patna High Court, while dismissing a petition filed under Article 227 of the Constitution of India, for quashing the order dated 13.02.2018 passed by the learned Sub Judge whereby and whereunder the learned executing court rejected the application filed for dismissal of the execution case, held that the decree will not become nullity against all the defendants if the right to sue survives against other defendants.
Brief Facts:
The petitioner is one of the judgment debtors, and respondent No. 1 is the decree-holder in an Execution Case. Respondent no. 1 had filed a title Suit for the declaration of his title and possession over the land described in the plaint. During the pendency of the suit, some defendants died, and their heirs were substituted. The title suit was decreed with a direction to the defendants to hand over vacant possession of land. The plaintiff filed an execution Case. The learned executing court was also informed about the pendency of the application seeking a stay before the learned appellate court. The petitioner prayed for the dismissal of the execution case against the defendants who were dead. This was rejected. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the impugned order suffers from arbitrariness, is a colourable exercise of power, and is not sustainable. He argued that the impugned order had been passed without application of judicial mind and against the settled principle of law to the effect that the decree against a dead person is a nullity and is not executable.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that there is no infirmity in the impugned order, and it does not require any interference by this Court. He argued that there is no requirement of law to register a miscellaneous case under Sections 47 and 151 of the Code when no provision has been mentioned while filing the application and when the short point in issue could be decided by the court based on material available on record.
Observations of the Court:
The Court noted that normally, when an application is filed under section 47 of the Code, Rule 459 of the Civil Court Rules provides that a miscellaneous case should be instituted. However, if there is no issue raising disputed facts requiring adducing evidence and elaborate hearing, there is no requirement of the institution of any miscellaneous case based on an application that had been filed without making any such prayer or without mentioning any provision.
The Court observed that the petitioner could not claim the decree to be nullity only because some of the defendants died during the pendency of the suit. If the heirs of such defendants are already on record and they did not contest the suit or were proceeded ex-parte, such legal heirs are not entitled to any relief on the ground of abatement or decree becoming a nullity against such person. Even if the contention of the petitioner about the decree being passed against dead persons is taken to be correct, the decree will not become nullity against all the defendants if the right to sue survives against other defendants. Since the suit would not abate as a whole and, for this reason, the decree as a whole would not become a nullity.
The decision of the Court:
The Patna High Court, dismissing the petition, held that the impugned order passed by the learned Sub Judge is reasoned and is affirmed.
Case Title: Abdul Badud v Abdul Quayum & Ors.
Coram: Hon’ble Justice Arun Kumar Jha
Case No.: Civil Misc. Jurisdiction No. 562 of 2018
Advocate for the Petitioner: Mr. Mahesh Narayan Parbat
Advocate for the Respondents: Mr. Naresh Chandra Verma
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