Amir Ali vs Mst. Amina Begum
2000 Latest Caselaw 286 Del

ORDER

K. Ramamoorthy, J.

1. The first respondent-plaintiff Mst. Amina Begum instituted the suit for partition on 7.9.1971 and she is yet to see the light at the end of the tunnel. She claimed 15/16 of share in the suit property. On 30.1.1982 a preliminary decree was passed.

After the first respondent had complied with the order passed by the lower court directing her to deposit a sum of Rs. 20,000/- towards the 1/16th share of the first defendant in the suit in the final decree proceedings she applied for possession. That is being delayed by the petitioner.

The first defendant in the suit was the mother of the first respondent. She died on 18.1.1987. The petitioner in the revision petition Amir Ali had been abusing the process of law by projecting his case by diverse pleas on different occasions. He sought an order from the lower court that the decree obtained by the first respondent had become a nullity on the ground that the L/Rs of the first defendant were not brought on record on time and the decree was obtained by the first respondent against dead persons. There were seven defendants in the suit. Defendants 3 to 7 were only tenants in the premises and they did not contest the suit.

2. First defendant was Mst. Ayshia Begum, mother of the first respondent. Second defendant Nizar Ali was the second husband of Ayshia Begum. Before narrating the facts culminating in the filing of the CM(Main), all the events have to be noted in some detail.

The late Iqbal Hussain, the first husband of Ayshia Begum, had two brothers Altaf and Arfin. Iqbal Hussain had half share in the suit property. Altaf and Arfin each had 1/4th share. Both Altaf and Arfin had migrated to Pakistan. Iqbal Hussain died in India. Iqbal Hussain and Ayisha Begum had a son and two daughters. They were Mohd. Bilal, Mst. Amina Begum (first respondent) and Mst. Insha Allah Begum. The son Mohd. Bilal migrated to Pakistan. Mst. Amina Begum and Mst. Insha Allah Begum remained in India. Mst. Amina Begum claimed to have purchased the share of her sister Mst. Insha Allah Begum. Proceedings were initiated under the Evacuee Interest Separation Act, 1951. Mst. Amina Begum and Mst. Ayisha Begum participated in the proceedings before the Competent Authority under that Act. On 13.7.1971 the evacuee share was transferred to Mst. Amina Begum. On that basis, as I noticed above, on 7.9.1971 she presented the plaint in the suit for partition. After the death of Iqbal Hussain, Ayisha Begum married Nizar Ali as her second husband. By Nizar Ali Ayisha Begum had a son Amir Ali (petitioner in CM(Main)) and two daughters Mst. Zarina Begum and Mst. Mobina Begum. The petitioner Amir Ali himself had filed an Amended Memo of Parties in the CM(Main) showing the plaintiff Mst. Amina Begum and Mst. Zarina Begaum as respondents. The Amended Memo of parties is as under:-

AMENDED MEMO OF PARTIES Amir Ali S/o Shri Nazir Ali R/o 2323-24 Gali Meer Madari Farash Khana, Delhi-6. .. Petitioner.

Versus

1. Mst. Amina Begum W/o Rashid Khan R/o 2323-24, Gali Meer Madari, Farash Khana, Delhi-6.

2. Mst. Zarina Begum D/o Nazir Ali H. No. Q-51, Brahm Puri Road, Seelampur, Delhi-53. .... Respondents.

3. At the stage itself it can be noticed that the second respondent Mst. Zarina Begum, who is the real sister of the petitioner, is supporting him.

4. On 30.1.1982 a preliminary decree was passed. Local Commissioner was directed to be appointed for partitioning the property. On 13.7.1982 the Local Commissioner submitted his report stating that the property was not divisible and the property had to be sold in public auction.

5. On 29.10.1982 Mst. Ayisha Begum challenged the order of the Competent Authority in favour of the first respondent (Amina Begum) under the Evacuee Interest Separation Act, 1951 by filing revision petition before the Appel- late Officer through General Power of Attorney holder Mr. Amir Ali, who is the petitioner in CM (Main). She also sought for the cancellation of the sale deed dated 24.8.1971 in favour of Mst. Amina Begum. On 27.11.1982 Mst. Amina Begum filed her reply to that petition filed by Mst. Ayisha Begum. The reply reads as under:-

"The respondent No. 3 Smt. Amina Begum submits that the petition in Revision is barred by time and also not maintainable for the following reasons:-

1. That the Property No. 1467 (old) 2323 and 2324 (New) Ward No. VII. Delhi was the property of Shri Iqbal Hussain and his two brothers, Shri Altaf Hussain and Mohammad Arafeen in share of 1/2, and 1/4 respectively.

2. That the Assistant Custodian vide order dated 3.3.1952 in file No. AC/J/S-7/1/1297, declared Shri Altaf Hussain and Mohammad Arafeen as Evacuees and their 1/2 share in the aforesaid property as Evacuee Property.

3. That Must. Ayshia Bi and Must. Amina are the heirs of Shri Iqbal Hussain, their share in the property is 4/64 and 14/64 in the whole property.

4. That during pendency of the claim of Must. Aishia Bi and Must. Amina Begum before the learned Competent Officer the Custodian in reply dated 29.7.1968 signed by Shri Bishan Lal Chaudhry to the claims submitted that 46/64 share was Evacuee property and 18/64 share was non-evacuee property and on the basis of the claim and the reply of the Custodian and after recording evidence Shri K.L. Wason, Competent Officer, vide order dated 9.10.1968, held that 18/64 shares non-Evacuee and 46/64 share Evacuees.

5. That again on 20.4.1971, the Competent Officer adjudicated that share of Must. Amina Begum was 14/64 and of Must. Ayshia Begum 1/16. This order was noted by counsel of Ayshia Bi and Amina Begum on that date.

6. That inspite of the service of notice by registered post, Must. Ayisha Bi did not file any objections to the purchase of the Evacuees shares. Though it was received by Ashia Bi on or about 25.5.1971 and before that notices were issued to both non-Evacuee cosharers offering the sale of Evacuee shares.

7. That the order of the Custodian declaring the shares as Evacuee Properties cannot be challenged and are final, hence Revision against the order of the learned Competent Officer is not maintainable.

8. That Must. Ayshia Bi who had filed claim and mostly had been appearing personally, was in know of the final order dated 20.4.1971. Revision now in 1982 of the order of 1971 is barred by time and not maintainable.

9. That the Respondent No. 3, purchased the Evacuee share (46/64) by a registered Sale deed dated 24.8.1971 and soon after filed suit for partition of the property against Must. Ayshia Bi and others stating in para No.1 of the plaint that her nonEvacuee share was 14/64 and she has purchased from the Competent Officer, 46/64 share which was Evacuee share and thus became owner of 60/64 share.

10. That Must. Ayshia Bi in her written statement dated 28.10.1971, in reply to para No. 1 of the plaint only denied that Amina Begum has purchased 46/64 shares in the property.

11. That the aforesaid suit was decreed on 30.1.1982 against which the present petition Must. Ashiya Bi filed R.S.A. No. 69 of 1982 which was dismissed by the D.B. of the Hon'ble High Court of Delhi.

12. That the petitioner (Ayshia Bi) had the knowledge of the order dated 16.5.1971, she had been personally appearing before the Competent Officer and more over the Order of the Competent Officer is based on the order of the Custodian which has become final and cannot be challenged.

13. That Must. Ayshia Bi has agitated the whole matter for over 10 years in the Civil Court and then in High Court and has failed there.

14. That the objector submits that the Revision is not maintainable on merits and also is barred by time.

It is, therefore, prayed that it be dismissed with costs."

6. The Appellate Officer (Addl. District Judge) passed the following order on 3.9.1983:-

"Before I proceed to deal with the arguments advanced before me let me give a brief resume of the facts necessary for the proper appreciation of the whole matter.

2. Smt. Ayshia Bi who is the petitioner before me in the revision petition filed by her was on 9th of August, 1968 held to be the owner of 4/64 share out of the property No. VII/1467(OLD)/2323-2324 (New), Gali Mir Madari, Frash Khana, Delhi. Smt. Amina Bi who is one of the respondents before me was declared owner of 7/64 share and the evacuee share was declared as 7/64. This order as passed by the Competent Officer and was later on confirmed on 12th of April, 1971 and the whole property was valued at Rs. 18,755/-. It was further ordered that the evacuee share be offered to the non-evacuees. Consequently, on 5th of May, 1971 Amina Bi offered to purchase the evacuee share and asserted that Ayshia Bi was not interested in purchasing the evacuee share jointly with her. It was subsequent to her statement that a notice was issued by registered cover to Smt. Ayshia Bi. On that notice acknowledgement due was received bearing the thumb impression purported to be of Ayshia Bi. As inspite of that notice Ayshia Bi did not put in her appearance, on 26th of May, 1971 the Competent Officer passed an order for transfer of evacuee share to Smt. Amina Bi. The record shows that there is an endorsement of Competent Officer to the effect that after the order was announced Aisha Bi had put in her appearance on the same day and had been informed about the order passed. That order of the Competent Officer bears a thumb impression purported to be of Ayshia Bi. On 24th of August, 1971 sale deed was executed of the evacuee share in favour of Smt. Amina Bi and on 4th of September, 1971 Smt. Amina Bi filed a suit for partition of the property in question and it is not disputed that the present petitioner Ayshia Bi was arrayed as defendant No. 1 in the said civil suit. It is also no disputed before me that in para No. 1 of the said suit Amina Bi had spoken of her having purchased the non-evacuee share and had also spoken of the sale deed having been executed on 24th October, 1971 in her favour with regard to the evacuee share. It is also not disputed before me that on 28 October, 1971 the present petitioner i.e. Smt. Ayshia Bi had filed her written statement. She had denied the title of Amina Bi over the evacuee share. It is also common case of the parties that in that suit a preliminary decree was passed in favour of Amina Bi on 30th of January, 1982 and that aggrieved by the said preliminary decree Smt. Ayshia Bi had preferred a Regular Second Appeal which was dismissed in limin by the High Court on 3rd of May, 1982. The appeal was filed on 2nd of March, 1982. After all this, Ayshia Bi filed the present revision petition. The revision petition is dated 29th of October, 1962. It is this revision petition which is the bone of contention and which has led to this order.

(3) In the revision petition Ayshia Bi has contended that she had never received notice of 26th of May, 1971 and that the order dated 26th of was obtained by misrepresentation and fraud.

(4) The learned counsel appearing for Amina Bi has taken a preliminary objection to the effect that the revision petition is hopelessly barred by limitation and that in any case it should not be entertained in the interest of justice as it has been filed after a lapse of great many years and further as the entertaining of the revision petition at this stage would greatly prejudice the interest of his client. On the other hand, it is contended by the learned counsel appearing for the petitioner that as no limitation is prescribed for filing a revision petition under Section 15 of the Evacuee Interest (Separation) Act, 1951 and as the revision petition can be entertained "at any time" the contesting respondent cannot be allowed to say that the revision petition should be thrown out on the ground of limitation. In support he has drawn my attention to a judgment of the Supreme Court in Fatima Bi Vs. Deputy Custodian General Evacuee Property . He has particularly drawn my attention to para 7 of the judgment which lays down that Section 27 of the Administration of Evacuee Property Act does not curtail the Power of the Custodian General to decide revision petition by any limitation of time. It is not disputed before me that Section 27 of the Administration of Evacuee Property Act is similar in content to Section 15 of the Evacuee Interest (Separation) Act, 1951.

(5) It is undoubtedly true that under Section 15 of the Act no period of limitation is prescribed and I can entertain the revision petition or call for the record suo moto "at any time". However, it cannot be forgotten that powers exercised by me under the Act are unquestionably judicial and inspite of the use of the expression "at any time" I may not be justified in entertaining a petition in revision which has been instituted after great delay. In deciding such matters the discretion is undoubtedly mine but the said discretion has to be exercised judicially and within the four corners of known judicial principles. In the present case in the opening paragraph of the judgment I have given in detail the dates. This was done by me purposely not only to provide the background but also to know what is the delay involved in the present false. Of course, the petitioner alleges fraud. But then even if it be assumed, for argument's sake, that the petitioner was not served with any notice on 26th of May, 1971 or that she had no knowledge when the order of 26th of May, 1971 was passed, she positively came to know of these orders when Amina Bi filed a suit for partition. That was as far back as on 4th of September, 1971. The petitioner as already noticed above, was defendant No. 1 in those proceedings and she did not file her written statement on 28th of October, 1971. Thus by 28th of October, 1971 she was fully aware of the fact that Amina Bi had purchased evacuee share in the property in question and that on 24th of August, 1971 sale deed for the said share had been executed in her favour. The petitioner before me, inspite of her having come to know all this in the year 1971 slept over the matter like the old Rip wan winkle and maintained sphinx-like silence. She suffered a decree on 30th of January, 1982, preferred an appeal on 2nd of March, 1982, got her appeal dismissed in limin on 3rd of May, 1982 and still till November, 1982 sat over the matter. Less there is any confusion about November, 1982, I may mention that though the revision petition is dated 29th of October, 1982 it was instituted on 5th of November, 1982. Thus even if there was a fraud played upon the present petitioner she had come to know if it at least on 28th of October, 1971 when she filed her written statement. There is no explanation as to why she sat over the matter till 5th of November, 1982. This being the position I feel that I shall not only be failing in my duty by entertaining the petition as such exercise of discretion in favour of the petitioner would be opposed to equity, justice, good conscience and well established principles of judicial discretion but shall also be playing havoc with the rights of Amina Bi by unsettling the matter which was finally settled as far back as 26th of May, 1971.

(6) Of course, I shall be failing in my duty by shying away from the authority referred to by the learned counsel for the petitioner. In Fatima Bi's case referred to above and relied upon by the learned counsel for the petitioner the facts are not very clear. But the judgment of the High Court which is reported in 1970 Delhi Law Times at page 133 goes to show that there too fraud had been alleged and the learned Judges had kept in view Section 17 of the Limitation Act. It appears from the judgment that the fraud was not disclosed till after long time. Thus that case is clearly distinguishable on facts. In any case in Fatima Bi's case discretion had been exercised by the learned Deputy Custodian General in favour of the petitioner and the question involved was as to whether in a writ petition the exercise of discretion in favour of the petitioner in entertaining the petition could be challenged and it was held by the High Court that in a writ the exercise of that discretionary powers could not be challenged. The same view was taken by the Supreme Court. I, therefore, fail to see as to how the judgment in Fatima Bi's case substantially helps the petitioner. That the discretion has to be exercised judiciously and keeping in view the facts and circumstances of the case find support from the judgment of the Supreme Court in Bishamber Nath Vs. State of Uttar Pradesh . In the said judgment the following sentence appearing at page 575 of the report is significant. It runs:

"The powers of the Custodian General are unquestionably judicial and normally he may not be justified in entertaining petition in revision which has been instituted after great delay.... "(emphasis supplied).

At this stage it is contended by the learned counsel for the petitioner that I should exercise discretion in favour of the petitioner for the simple reason that she had been pursuing the other legal remedy available to her. The legal remedy according to the learned counsel, was he defending of the suit for partition. I find myself unable to subscribe to this view. The defending of the partition suit does not in any way help the petitioner as far as the condensation of great delay is concerned.

(7) Before I draw the curtain I may mention that even otherwise the petitioner has failed to make out a prima facie case of fraud. As already noticed by me in the opening paragraph of the judgment notice for 26th of May, 1971 was sent by registered cover. Its A.D. is on the file and bears thumb impression purported to be of the petitioner. It is significant to note that in the entire revision petition it is no where specifically alleged that the said A.D. does not bear the thumb impression of the petitioner. It is also significant to note that nowhere in the revision petition had it been specifically alleged that the petitioner did not appear before the Competent Officer on 26th of May, 1971 and that she was not informed about the order passed on that day. She has also no where specifically alleged that the thumb impression appearing on the proceedings of 26th of May, 1971 is not hers. This being the position, the petitioner has failed to make out a primafacie case of fraud as well.

(8) For the reasons recorded above I refuse to proceed with the revision petition and declining to exercise my discretionary powers in favour of the petitioner, dismiss the revision petition with no order as to costs."

7. On 8.10.1983 Mst. Ayisha Begum through her son Amir Ali, Power of attorney agent, filed C.W. 2278/83. A Division Bench of this Court dismissed the same on 2.11.1983. Mst. Ayisha Begum through her son Amir Ali as her power of attorney agent challenged the order before the Supreme Court. The Supreme Court dismissed the S.L.P. on 18.2.1985.

8. The first defendant preferred an appeal against the preliminary decree. On 30.5.1985 that appeal was dismissed by the appellate court.

On 22.5.1986 the trial court passed the following order :-

"Present : Counsel for the parties.

Arguments heard in regard to passing of final decree. The pltf. filed the present suit for partition, rendition of a/cs. and recovery of damages in the year 1971. A preliminary decree of partition and rendition of accounts was passed on 30.1.82 by Shri K.S. Khurana, Sub Judge Ist Class. While the order passing preliminary decree, the plaintiff was declared owner of 15/16th share of the suit property and deft. No. 1 was declared owner of 1/16th share of the suit property and deft. No. 1 was declared owner of 1/16th share of the suit property. Shri O.P. Saxena, Adv. was appointed L.C. in this case to suggest the mode or partition and also to take the accounts from deft. No. 1. The Local Commissioner submitted his report on 13.7.82. In his report, he has reported that the property in question is not capable of partition by metes and bounds. As regards the a/cs. it is reported by the L.C. that deft. No.1 declined to submit accounts to him. As regards the claim of plaintiff for a/cs., it is not pressed by Shri Sultan Yaar Khan, Adv. for plaintiff. As regards the share of plaintiff and def. No.1 in the suit property, the shares decided by Shri K.S. Khurana, Sub Judge Ist Class, Delhi have been confirmed and approved upto the Highest Court of land. Therefore, a final decree is passed declaring the plaintiff to be owner of 15/16th owner of the suit property and deft. No.1 is declared owner of 1/16th share of the suit property. The efforts were made between plaintiff and deft. No.1 to give bids so that the amount as regards the value of suit property may be settled in the court itself between the parties and their respective shares can be given according to the value so decided but deft. No.1 is unable to agree to the bid given on behalf of the plaintiff at Rs. 3,20,000/- on the ground that if the suit property is sold by public auction, it is likely to fetch more amount and as such, deft. No. 1 will be able to get more amount as per her share. In these circumstances, there is no option but to sell the property by public auction. It is ordered that the suit property be sold by public auction so that the parties can get their shares as per shares decided in the final decree. Both the parties shall have right to participate in the auction. The suit property be sold as per the following schedule:-

Court Door Spot Auction 2.7.86, 15.7.86, 31.7.86.

The plaintiff is also allowed costs of the suit. Decree sheet be prepared in above terms and file be consigned to record room."

9. On 22.9.1986 The first defendant Ayshia Begum filed RFA. 328/86 in this Court against the order dated 22.5.1986. On 18.1.1987 the first defendant Ayshia Begum died (appellant in RFA. 328/86). On 18.2.1987 the petitionerapplicant herein Amir Ali filed an application CM.499/87 and the same is as under:-

"Application under Order XXII R.3 read with Rule 11 C.P.C. on behalf of the L.Rs of deceased-appellant.

Respectfully sheweth:-

1. That Shrimati Ayshia Begum the appellant has since died on 18.1.1987 at Delhi leaving the following legal heirs:-

(a) Amir Ali S/o Nazir Ali (son)

(b) Mst. Zarina Begum W/o Shri Mohd. Rais, Resident of House No. 29, Gali No. 2, Zafrabad, (East Delhi), ...(daughter)

(c) Mst. Mobina Begum wife of Shri Mohd. Yaqub, resident of Gali Kaptanwali, Bara, Dari, Delhi. ...(daughter)

2. That right to sue/survives i.e. right to continue the appeal survives in favour of the above named L.Rs.

The L.Rs. therefore most respectfully pray that they may be brought on the record of the appeal and be allowed to pursue and continue the appeal."

10. On 24.2.1987 the counsel for the respondent-plaintiff (Amina Begum) filed a reply in the following terms:-

"1. That it is admitted that Must. Ashiya Begum died on 18.1.1987 at Delhi. At her death she has left the following heirs:-

2. Must. Inshallah Begum widow of Mohammad Bashir.

3. Mohammad Bilal, son and daughters from her first husband late Shri Iqbal Hussain.

4. Amir Ali.

5. Must. Zarina Begum.

6. Must. Mobina Begum, son and daughters from her second husband Nazir Ali.

2. That Must. Ashiya Begum had inherited her share in the property as widow of Late Shri Iqbal Hussain. This fact has throughout been admitted.

3. That in S.L.P. (Civil) No. 15920 of 1983, by the title:-

Smt. Ayshia Bi Vs. Smt. Amina Bi and others, it has been admitted that Ashiya Bi (Begum) has two daughters and one son from Shri Iqbal Hussain.

4. That as the share in property had been inherited by Mst. Ayshia Bi (Begum) as widow of Shri Iqbal Hussain so her two daughters and one son from Shri Iqbal Hussain are entitled to succeed to the share of Ashiya Begum.

5. That para 2 of the application under reply is wrong and denied.

6. That in the affidavit of Amir Ali attached to the application under reply, he has very cleverly not stated in para 2 that the applicants in the application under reply are the only heirs.

It is prayed that application under reply be dismissed with costs."

11. On 24.4.1987 CM.499/87 filed by Amir Ali to implead himself as L/R of Ayshia Begum was considered and the RFA.328/86 was dismissed. The Order dated 24.4.1987 is as under:-

CM.499/87

By this application Syed Amir Ali seeks to be imp leaded as a legal representative of the deceased appellant on the basis of an alleged registered will. Mr. Sultan Yar Khan, counsel for respondent No. 1, disputes the genuineness and the validity of this will. He says, that he has filed a reply to this application on behalf of respondent No. 1, but it does not appear to have been attached to the record.

We think, that proceedings in this case have gone awry because counsel for respondent No. 1 has chosen to appear, of his own accord, even before the appeal has been admitted. The correct position is that this appeal is still at the stage of preliminary hearing, and the appellant has died. Syed Amir Ali has moved this application for being imp leaded as her legal representative. In the normal course, we would allow this application, subject to just exceptions, leaving it to the respondents to raise such points as they thought fit, in the event that this appeal is admitted. That is the course which we now propose to follow.

Accordingly, this application is allowed, subject to all just exceptions. Syed Amir Ali is imp leaded as the legal representa tive of the appellant.

We proceed to hear counsel for the appellant in support of the appeal.

RFA 328/86 Dismissed.

To avoid any possible prejudice to the respondents, we make it clear that nothing in this order will affect their right to raise any contention which, they may think fit, as regards the alleged will propounded by the appellant in any proceeding."

12. On 6.5.1987 Amina Begum plaintiff applied to the trial court for the holding of the public auction. On 14.8.1987 the trial Judge Mr. Akshay Kumar noted the presence of counsel of Amir Ali and also the counsel for other legal representatives of Ayshia Begum and the learned trial Judge had recorded that the L.Rs. had no objection to the auction being held. That order reads as under:-

"Present: Counsel for DH.

Counsels for LRs of JD Ayshia Begum.

Objections filed by LR Amir Ali considered. These are not pressed if right of Amir Ali in the share of Ayshia Begum is decided on the basis of will alleged by him to be executed by Ashia Begum before share of Ayshia Begum is distributed among the LRs. Ld. counsel for LR Amir Ali has no objection if auction of suit property is held. Similarly Ld. counsel for other LRs. has no objection to auction being held for sale. The sale of property in question shall be subject to rights of LRs. of Ayshia Begum to get her share.

Accordingly it is ordered that sale of suit property be sold as per following schedule.

Court door Spot Auction Report

27.8.87, 15.9.87, 28.9.87, 9.10.87.

Put up on 9.10.1987 for further orders."

13. On 28.9.1987 auction was not held and on 30.10.1987 public auction was held and the plaintiff was declared as the highest bidder. By order 6.11.1987 the auction was confirmed, which reads as under:-

"Present: Counsel for D.H.

Counsel for objectors Mohd.

Yunus and Amir Ali one of L.Rs. of J.D. is present.

Objections have been filed by Mohd. Yunus copy of which has been given in the prelunch session to ld. counsel for D.H. who has filed reply to the objections and copy of the same has been given to ld. counsel for the objector Mohd. Yunus. Arguments on the objections heard. The main objection is that the objector Mohd. Yunus had given the bid of Rs. 1,05,000/- and the same was accepted but later on, the auctioneer refused to accept 25% of the auction amount of the objector after he had some talk with the husband of the decree holder. The allegations regarding acceptance of the bid of objector Mohd. Yunus has been controverted. It is stated that his bid could not be accepted as the D.H. has given the highest bid to the tune of Rs. 3,20,000/-. I have perused the report of the Court auctioneer in which the highest bid of the D.H. which was Rs. 3,20,000/- was accepted. In view of the fact that the highest bid was of Rs.3,20,000/-, it is wholly unbelievable that bid of Rs.1,05,000/- given by the objector was allegedly accepted. Therefore, the objections of Mohd. Yunus absolutely no merits and appears to have been made with a view to delay further proceedings in the execution of the decree. Therefore, the objections are dismissed.

Shri Amir Ali one of the L.Rs of the J.D. Ayshia Begum has requested for a date for filing the objections. In the preunch session, his counsel was specifically directed to file objections, if any, in the postlunch session. But the ld. counsel has not come nor the objections have been filed. Amir Ali had sufficient time to file the objections as the auction was held on 30.10.87. Considering all these circumstances, request for adjournment for filing objections has no merits. Therefore, it is disallowed.

There being no objections to the report of the Court auctioneer vide which he has put auction of the property in question, the auction sale is confirmed. Decree holder who was the highest bidder in the said auction is given 15 days time to deposit the balance amount.

Case is adjourned to 11.12.87 for further orders."

14. On 9.11.1987 Amir Ali filed an application under Order 47 Rule 1 C.P.C. for review of the order dated 6.11.1987. On 18.12.1987 the review application was dismissed. Against that order, Amir Ali filed FAO-25/88 in this Court. On 7.11.1988 that appeal was dismissed by this Court by D.P. Wadhwa, J. (as His Lordship then was).

15. On 9.11.1987 Amir Ali also filed his objections purporting to be under Order 21 Rule 90 C.P.C. On 18.12.1987 the objection petition filed by Amir Ali was dismissed. The order reads as under :-

"This order shall dispose of the objection dated 9.11.87 of Sh. Ameer Ali. I have heard the Ld. counsel for the decree holder Sh. M.S. Yar Khan and Sh. K.C. Saini, Advocate for the Judgment Debtor.

2. The first objection against the sale dated 30.10.87 is that Zarina Begum and Mobina Begum who are the daughters of late Smt. Ashiba Begum alongwith Amina Begum have not been permitted to join in the preparation of the sale proclamation. They had not been given any notice for taking part in the sale of the property. There is thus material irregularity in conducting the sale on account of the same the sale has to be set aside.

3. The cause for getting the sale set aside according to the objection would be in favour of the daughters of Ayshia Begum namely Zarina Begum and Mobina Begum and not in favour of the objector. The objector participated in the same. Law will presume that the objector consented to the preparation of the proclamation U/o 21 Rule 66 CPC. The objector as the law presume has participated he is estopped from making any objection in this regard nor can he be permitted to raise the objection the right of which is in favour of the others also do not come to object and when they have not come law presumes that they are not interested to object. Therefore, this objection on the part of the objector cannot survive.

4. The second objection which has been taken by the objector is that the 25% of the sale amount has not been deposited by the auction purchaser, the decree holder. As admitted 25% of the 1/16th share has been deposited and the balance of 1/16th share has been deposited within 15 days. Order 21 Rule 84 Sub Clause 2 is clear in itself when it is read along-with order 21 Rule 72 CPC. Order 21 Rule 84 sub clause (2) provides that where the decree holder is the purchaser and is entitled to set off the purchase money under Rule 72 the court may dispense with the requirement of this rule. Admittedly the decree holder was permitted and so also the objector to participate in the sale of the property. The decree holder has participated and has come out to be successful bidder. She is entitled to the set off. Accordingly she is granted permission by this order even if it is assumed that she was not entitled earlier. By the permission by this order the objec- tion no more survive. The second objection also fails.

5. The third objection of the objector is that the bid of Mohd. Yunus of a sum of Rs. 1,05,000/- was accepted and he was asked to deposit 25% of the amount of bid. When Sh. Mohd. Yunus was ready with the money in the meanwhile the auctioneer left the auction place and started talking with the husband of the decree holder/auction purchaser in a corner and returned after 25 minutes. Sh. Mohd. Yunus offered the amount but the auctioneer refused to accept the amount claiming that he has issued a receipt in favour of the decree holder/auction purchaser. This objection on the face of the record cannot survive because (1) the objections of Mohd. Yunus has already been dismissed. The dismissal of the said objection operates as resjudicata so far as this objection is concerned because the law presume that this objection is taken by the objector on behalf of Mohd. Yunus. Even otherwise this objection cannot survive because Mohd. Yunus offered only Rs. 1,05,000/- while the decree holder auction purchaser has given a bid of Rs. 3,20,000/-. On the face of the bid of Rs. 3,20,000/- the bid of Rs. 1,05,000/- will never be accepted by the Court nor the sale will be confirmed on such an objection. This objection even otherwise does not survive.

6. It is submitted by the Ld. counsel orally that the auctioneer should have waited upto 3 p.m. and the auction was held between 12.30 p.m. to 1.00 p.m. I gave option to the objector if there is any purchaser who is ready to offer Rs. 3,20,000/- and he brings alongwith the cash in the court the sale will be done in his favour. The offer is still available to him for a week, if he brings any purchaser to purchase the property at Rs.3,20,000/-. The decree holder auction purchaser has agreed to this. There- fore, this objection even if assuming for the sake of argument that the bid was not taken upto 3 p.m. does not survive. Thus there is no objection left. The objections are therefore, dismissed. Since now 30 days have elapsed the sale in favour of the auction purchaser is confirmed at Rs.3,20,000/-. The sale certif- icate shall be issued only after a week so that the offer which has been given by the decree holder auction purchaser by this order as above may come to an end. Put up for signing of sale certificate on 5.1.88.

Announced."

16. Mr. Amir Ali filed FAO.25/88 in this Court against the order dated 18.12.1987. On 7.11.1988 that appeal was dismissed by this Court by D.P. Wadhwa, J. (His Lordship then was). On 29.11.1988 the petitioner Amir Ali filed the objections purporting to be under Order 47 C.P.C. On 2.12.1988 that was dismissed by the trial Judge. The order reads as under:-

"Pr. Sh. Sultan Yar Khan Advocate for the D.H.

Sh. K.C. Saini Advocate for the J.D.

Draft decree sheet which has been received after stamping from the Collector of Stamp having paid the duty required has been signed today. Thus final decree is signed.

Sh. Saini has filed the objections. He has made some submissions which has been written in the objections. What is stated in the objection have already been considered in the previous orders. There is no merit in the objection. The same are dismissed.

3. The plaintiff requests that the decree sheet be got registered. The reader of the Court shall take the decree and present the same before the Sub Registrar for registration. He shall take the authority from the Court. He shall present three copies and return one copy for the file of the Court and the one got to be retained by the Sub Registrar and the original to be delivered to the plaintiff. He shall be paid Rs. 200/- for doing this job by the plaintiff as his remuneration. Nothing further is to be done by the court after receipt of the copy of the decree sheet from the Sub Registrar office. File be consigned to record room."

17. Against the order dismissing his objections under Order 47 C.P.C., Amir Ali filed C.R. 43/89 in this Court and that was dismissed on 17.1.1989 by this Court.

18. Mr. Amir Ali filed R.F.A. 370/89 in this Court challenging the order passed on 2.12.1988.

19. On 27.1.1989 Mst. Amina Begum (plaintiff decreeholder) applied for possession of the property as she had complied with the order passed by the Court directing her to deposit a sum of Rs. 20,000/-. That application is as under:-

"The Decree Holder submits:-

1. That in this suit Preliminary Decree with costs was passed by Shri K.S. Khurana Sub Judge Delhi on 30.1.1982 and the learned Court appointed Shri O.P. Saxena, Advocate as Local Commissioner to take accounts from Must. Ayashia Begum and suggested the mode of partition of the property. Fee of Rs. 500/- was fixed for the Local Commissioner in the said order. Rs. 500/- were paid to the Local Commissioner by the Decree Holder vide receipt which is on record. The Local Commissioner, in obedience to the said order, submitted his report on 13.1.1982.

2. That thereafter Shri Akshay Kumar, Sub Judge, Delhi passed Final Decree with costs on 2.7.1986.

3. That thus Rs. 500/- paid by the Decree Holder to the Local Commissioner, Mr. O.P. Saxena, Advocate, as fees in obedience to the order of the Court has to be added in Costs.

4. That Final Decree Sheet was signed by this Hon'ble Court on 2.12.1988.

5. That the Decree Holder has deposited Rs. 20,000/- in Court of the 1/16th Share of Late Ayshia Begum.

 6. That Ayshia Begum at her death, has left the following heirs:-    1. Amina Begum Daughter 2. Insha Allah Begum Daughter 3. Mohammed Bilal Son 4. Mobina Begum Daughter 5. Zarina Begum Daughter 6. Amir Ali Son  

 Thus according to Mohammedan Law, the share of each son shall be 2/8 and each daughter's shares shall be 1/8.   

7. That the Decree holder is to receive Rs.500/- plus Rs. 2,202.25, totalling Rs.2,702.25 paise as per orders of the Court. This amount is to be paid to the Decree Holder out of Rs.20,000/- out of the remaining amount of Rs.17,297.75 paise Decree Holder's share amounting to Rs.2,162.22 paise is to be paid to her. The remaining amount of Rs.15,135.53 paise have to be distributed to the remaining five heirs, i.e. Mohammad Bilal, Insha Allah Begum, Zarina Begum, Mobina Begum and Amir Ali, daughters having 1/8 share and sons 2/8 share each.

8. That out of the heirs of Must. Ayshia Begum, Amir Ali is in possession of a portion of the property No. 2323 in the first floor. He has not so far quit and given peaceful possession of the property to the Decree Holder as directed by this Hon'ble Court. The portion of the premises in Amir Ali's possession has to be ordered to be delivered through the process of the Court.

It is prayed that orders accordingly be passed."

20. On 24.2.1989 Amir Ali filed his reply to the application filed by Mst. Amina Begum. On 24.2.1989 the learned trial Judge passed the following order :-

"On reading the objections of Amir Ali I find that the decree has been prepared in name of Ayshia Begum, who is dead. Unless the decree is corrected, no action can be taken in terms of the execution. Decreeholder to take steps in accordance with the law. Put up on 7.4.89. Decreeholder also has moved application of or attornment. Action on the same shall be taken only after the decree which has been prepared against a dead person. Put up for further orders on 7.4.1989."

21. On 7.4.1989 Mst. Amina Begum plaintiff in the suit filed an application for amendment of the decreesheet and the same is as under:-

"Application under Section 152 read with Section 151 C.P.C.

The above named Decree Holder submits:-

1. That Vide Order dated 2.5.1972, Shri R.L. Gupta, the then Sub- Judge Delhi in this suit appointed Shri Bal Kishan Choudhry, Receiver and Rs. 60/- was fixed his fee tentatively. This amount was paid by the applicant/Decree Holder who was plaintiff in the suit and was owner of 15/16 shares.

2. That Shri K.S. Khurana, Sub Judge, Delhi in the above suit passed preliminary Decree with costs on 30.1.1982 and also appointed Shri O.P. Saxena, Advocate, Delhi as Local Commissioner to suggest the mode of partition and take accounts from Must. Ashyia Begum and Rs. 500/- was fixed as his fee. This amount too was paid by the plaintiff.

3. That Shri Akshey Kumar, Sub Judge, Delhi, passed final decree with costs on 2.7.1986.

4. That thus Rs. 560/- are also costs of the applicant - Decree Holder which should have been included in Decree Sheet, but due to clerical mistake these amounts have not been added in costs of the Decree Holder in the decree Sheet.

5. That Must. Ayshia Begum had filed R.F.A. No. 328 of 1986 in the Delhi High Court against the final Decree passed by Shri Akshay Kumar, Sub Judge, Delhi.

6. That during pendency of the said appeal Must. Ayshia Begum died on 18.1.1987.

7. That Shri Amir Ali and his two sisters Zarina Begum and Mobina Begum submitted an application under Order 22 Rule 3, read with Rule 11, dated 18.2.1987, in the Hon'ble High Court, that the only L.Rs. of Must. Ayshia Begum are Amir Ali, Zarina Begum and Mobina Begum and they be brought on record of the said appeal, to which the Decree Holder replied on 8.4.1987 stating that the D.H. Must. Insha Allah Begum & Mohammad Bilal are admittedly the daughters and son of Must. Ayshia Begum,........... from Shri Iqbal Hussain and on his death Must. Ayshia Begum inherited her widow's share in the property. Thereafter Amir Ali again on 13.4.1987, made an application to the Hon'ble High Court alleging that Must. Ayshia Begum had made a will by which she had bequeathed her share.

8. That the said appeal and the application were disposed of by the Hon'ble Division Bench of the Hon'ble High Court vide order dated 24.4.1987 dismissing the appeal and allowed the application impleading Amir Ali as legal heir of Ayshia Begum subject to just exceptions.

It was further ordered that nothing in this order will effect the rights of D.H. to raise any contention when they may think fit as regards the alleged will propounded by Amir Ali in any proceeding.

9. That thereafter the applicant/D.H. moved application dated 6.5.1987 to bring the heirs of Ayshia Begum deceased on record of which notice was issued to all heirs and some of the heirs filed objections to the sale by auction which were dismissed by this Court.

10. That while preparing the Decree Sheet, by mistake Ayshia Begum though had died had been shown as J.D. No. 1. This is due to clerical mistake. It is an accidental slip.

It is prayed that the Decree Sheet dated 2.12.1988 be amended by :-

(1) adding Rs. 560/- in the costs of the plaintiff.

(2) L.Rs. of Ayshia Begum who are (1) Amina Begum, (2) Insha Alla Begum, (3) Mohammed Bilal, (4) Amir Ali, (5) Zarina Begum and (6) Mobina Begum be shown as Defendants and legal representatives of Ayshia Begum deceased.

Prayed accordingly."

22. On 22.10.1990 R.F.A. 370/89 filed by Amir Ali challenging the final decree was dismissed. On 13.12.1990 Amir Ali moved an application purport- ing to be under Order 22 Rule 4 C.P.C. praying that the Court should hold that the suit filed as early as 1971 stood automatically abated. The appli cation is as under :-

Application under Order 22 Rule 4 read with Section 151 CPC on behalf of Amir Ali objector.

......

1. That the plaintiff filed the above noted suit for possession and rendition of accounts etc.

2. That the said suit was contested by the defendant No. 1 and 2.

3. That during the pendency of the said suit, Ayshia Begum died on 18.1.1987, similarly defendant No. 2, died on 9.10.85.

4. That likewise, the defendant Nos. 3,4,5 died on various dates during the pendency of the suit proceedings. Likewise the other defendants No. 6 & 7 were uncontested defendants and were never participating in the suit proceedings.

5. That it further appears that the decree holder moved an application under Section 152 r/w Section 151 for correction of the decree and in this connection reply to the application of the decree holder was filed by the objector on 17.8.89.

6. That thereafter in pursuance of the orders of this Hon'ble Court arguments were ordered to be filed by the parties and those form part of the judicial record.

7. That the present application is necessitated by the fact that the defendant No. 1 died on 18.1.1987, defendant No. 2 died on 9.10.1985, defendant No. 3 Sabbir Khan died on 25.11.1977, and defendant No. 4 Abdul Karim died on 12.8.1985, Defendant No. 5 died on 15.5.1975 i.e. during the pendency of the case and the abatement took place automatically. That being so, the suit is dead and a decree passed in the face of such abatement is a nullity so far as the legal representative of the deceased d fendants are concerned.

8. That the plaintiff did not take any steps to bring on record the legal heirs of the said deceased defendants. Only an applic tion under Sections 152 and 151 CPC has been moved by the plainiff in respect of defendant No.1. The said application is dated 7.4.1989 and is still pending disposal. Even the said application is hopelessly barred by time and till today there is no prayer for condensation of delay. However, in respect to the other defendants no steps have been taken to bring on record for their legal heirs.

9. That the present application moved by the objector is essentially to be disposed of in the first instance as its disposal would have a direct bearing on the earlier application moved by the Decree holder u/s. 151/152.

10. That as the suit had abated against the defendant No. 1 and 2 in view of the application dt. 6.5.1987 having not been filed within the prescribed period of limitation, therefore, any decree passed in the above suit is a nullity and incapable of execution.

It is, therefore, prayed that this Hon'ble Court may be pleased to hold that the suit filed as early as in 1971 stood automati- cally abated, in view of the provisions of Order 22 subRule 3 of Rule 4 and since the suit is a nonest and is incapable of execution. As such the earlier application for the correction of the decree has become infructuous."

23. Mst. Zarina Begum, second respondent in the CM (Main), the real sister of Amir Ali, filed an application praying for the same relief prayed for by Amir Ali and the same as under :-

"Application Under Order 22 Rule 4 C.P.C. and Section 151 C.P.C. on behalf of Zarina Begum D/o Defendant No. 1 & 2 who are now dead.

1. That Smt. Amina Begum D/o Defendant No. 1 and 2 filed a suit for partition as well as rendition of accounts in respect of property No. 2323/2324, Gali Mir Mandari, Farash Khana, Delhi against Ayshia Begum and others.

2. The said suit was contested during the life time of Ayshia Begum and her husband Nazir Ali. Both of them died before the passing of the final decree. The plaintiff/Decree Holder never look any step to bring the legal heirs of the decease d/defendants and by suppression of material facts, obtained final decree against the deceased defendants.

3. That after passing of the final decree, the decree holder made an application u/s. 151 C.P.C. for correction of decree which was obtained against dead person.

4. That as per knowledge of this objector, defendant No. 1 Smt. Ashiya Begum died on 18.1.1987, while defendant No. 2 died on 9.10.1986, Sabir Khan who is defendant No. 3 in the original suit also died on 25.11.1977. Similarly, Abdul Karim, Def. No. 4 died on 12.8.1984, Def. No. 5 died on 15.5.1975. In view of these facts, the suit is not maintainable and no decree can be executed against the dead persons. Since the legal representatives of the deceased defendants were not brought on records within the period of 90 days as such the suit has abated and decree itself has become nullity. The plaintiff did not take any step to bring the legal heirs or representatives on records. So the correction of any decree which is self in a nullity cannot be corrected within the meaning of Sections 151 & 152 C.P.C. The provisions of Section 152 C.P.C. are not applicable in the circumstances of the instant given case.

5. That earlier also the suit stood automatically abated in view of the application dated 6.5.1987 which was also not filed within the period of limitation. This objector was also not served before passing of the final decree.

It is, therefore, prayed that the Hon'ble Court be pleased to hold that the suit filed by Amina Begum titled Amina Begum Vs. Ashiya Begum being suit No. 701 of 1971 has abated. The decree passed in respect of the suit property is a nullity and not capable of execution, and no correct can be made now."

24. The three applications, application filed by Amina Begum for amendment of decree sheet on 7.4.1989, application filed by Amir Ali on 13.12.1990 and the application filed by Zarina Begum on 22.3.1991 were disposed of by the learned Senior Civil Judge on 27.5.1996.

25. By this Order the learned Civil Judge allowed the application filed by the decree holder Amina Begum and dismissed the applications filed by Amir Ali on 13.12.1990 and the application filed by Zarina Begum on 22.3.1991. It is against this order Amir Ali had filed this Cm (Main).

26. In the CM (Main) the petitioner has prayed for the following reliefs:-

"It is therefore humbly prayed that -

(a) the decree dated 2.12.1988 passed in Suit No. 701/71 may be held null and void and unexecutable against the applicant and suit abated.

(b) That the order dated 27.5.1996 passed in execution No. 1/89 may be set aside."

27. The main point taken in the CM (Main) is that on the death of Ayshia Begum on 18.1.1987 L.Rs. were not brought on record in the trial court and, therefore, whole proceedings had abated and the decreeholder cannot enforce the decree dated 22.5.1986 and order dated 2.12.1988. In the grounds the point taken is that the final decree dated 2.12.1988 was in favour of decreeholder Amina Begum without substituting the names of the legal representatives and the application filed by Amina Begum on 7.4.1989 for possession was barred by time as Amina Begum being daughter of Ayshia Begum was aware of the death of her mother. The order dated 2.12.1988 was against the first defendant who was dead and, therefore, it had become unenforceable when the L/Rs were not brought on record on time. Further point taken is that the application dated 7.4.1989 for amendment of the decree was not maintainable. The petitioner has further pointed out that rejection of the application of Zarina Begum was illegal. It may be noticed that Zarina Begum is the second respondent and she has not challenged the order passed by the lower court by filing any independent CM(Main) or revision petition.

28. The learned counsel for the petitioner Mr. Sudhir Mehandiratta submitted that inasmuch as the decree holder Amina Begum had not brought on record the legal representatives of Ayshia Begum who died on 18.1.1987, the proceedings had abated and she cannot seek to enforce the decree. The learned counsel referred to a judgment of this Court Babu Lal & Others Vs. Satya Narain, . This case very much supports the case of the first respondent. In this case, the learned Single Judge of this Court had to consider a question similar to the one that has arisen for consideration. The facts, as noticed by the learned Judge are these:

One Bhagwan Dass was a tenant in the premises in question and an application was filed against him for eviction in May 1981. That Bhagwan Dass filed an application for leave to appear and defend the eviction petition. The learned Addl. Rent Controller, who heard the application, dismissed it and that was challenged in revision in this Court. Pending the revision, that Bhagwan Dass died. An application was filed to bring on record his legal representatives and that application was ordered. That C.R. was allowed on 16.7.1984. One of the points in that revision was that all the legal heirs of Bhagwan Dass had not been brought on record. That question was left open for decision. After the order passed by this Court granting leave to defend, the legal representatives of said Bhagwan Dass raised a point that all the legal representatives were not brought on record. The learned Single Judge observed:-

"The legal position in respect of substitution of legal heirs in the appeal or in the revision is quite clear that once the legal heirs have been substituted in the appellate court or in revisional court, there is no necessity of bringing any application before the trial Court for substituting the legal heirs in the proceedings and the proceedings do not abate for omission to make any such application."

29. Discussing the legal position the learned Judge observed:

"In Radhaballav Choubey & Others Vs. Mahadev Choubey & Others, , it has been observed that when there is a substitution in a pending appeal in the High Court and the matter is remanded to the court below, on remand, the Court itself has to see that the names of those, who are dead, should be removed from the record and those, who are already substituted in the High Court should be brought on the record. Similar was the view taken in Hema Dibya Vs. Amarendra Kishore Das and others, . In this case, a plaintiff's suit was dismissed in default and an application was moved for restoration of the suit which was also dismissed. An appeal was filed and during the pendency of the appeal, the plaintiff appellant had died and his legal representatives were substituted and the appeal was allowed and the suit was restored and the matter was remanded to the court for deciding it on merits. It was held that it was unnecessary that the legal representatives should have been again substituted in the suit. In Panna Lal Agrawala Vs. Kanhaiya Lal Jain & others, and Harbans Lal Vs. Ved Parkash, , same principle was reiterated. The aforesaid judgments follow the law laid down by the Supreme Court in Rangubai Kom Sankar Jagtap Vs. Sunderbai Bhratar Sakhyaram Jedhe & others, . In this case, the Supreme Court has clearly laid down that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will ensure for the benefit of all the subsequent stages of the suit. So, in Kanailal Dholey and others Vs. Kalicharan Chatterjee and others, , it was laid down that plea of abatement is not raised in the Lower Court, then such a plea could not be allowed to be raised in the appeal when no prejudice is shown to have been caused by failure to bring the legal representatives of the deceased on record in a formal manner. In the present case, legal heirs of the deceased tenant had filed the written statement and had contested the eviction petition on merits and after full trial the case was decided and in manner these legal heirs have been prejudiced by inability of the Additional Rent Controller to make any formal order substituting them in place of deceased tenant.

At the time of admission of this civil revision Sultan Singh, J., had made reference to Union of India Vs. Ram Charan (deceased) through his L.Rs., . I have gone through that judgment and find that the same is completely distinguishable. In the said judgment, the Supreme Court had only laid down wellknown principle of law that if suit had abated, then there is no reason for the court to invoke any inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading the legal representatives of the deceased. It was pointed out that the abatement could be set aside only on the grounds mentioned in Order XXII Rule 9 of the Code of Civil Procedure. However, in the present case, eviction petition cannot be deemed to be abated in view of the ratio of law laid down by the Supreme Court in Rangubai (supra). No judgment has been cited by the learned counsel for the petitioner taking any different view. Hence, I hold that there is no merit in this contention of the learned counsel for the petitioners that eviction petition should be deemed to have abated."

30. The learned counsel referred to judgment of this Court reported in Satnam Singh and another Vs. Mohinder Singh and others, . In this case, Dalip K. Kapur, J. held that once there was a pronouncement of judgment after the expiry of period for impleading the L.Rs. the judgment was to be treated as non existent. I am quite unable to see how this could be of any help to the petitioner.

31. The learned counsel referred to another judgment of this Court in Kishan Lal and others Vs. Nathi Lal, . The proposition that was canvassed before the learned Judge was whether an application to bring on record L/Rs. of the plaintiff after the preliminary decree would be covered by any period of limitation and whether the substitution could be made u/s. 151 CPC. The learned Judge held that there is no time limit for substitution and Order 22 Rule 3 CPC was in applicable. This also does not help the petitioner.

32. The lower court in its order dated 27.5.1996 applying the principles laid down by the Supreme Court and the general principles of law applicable to this case rejected applications filed by Amir Ali and Zarina Begum and allowed the application filed by Amina Begum, the decree holder. There is no question of any abatement of any proceedings as contended for by the petitioner on the facts and circumstances of this case. The lower court has said in paragraph 21 as under:

"It is clear that the full bench had made reference not only to Rule 3 but too Rule 4 as well of Order 22 of the C.P.C. Of course in Gardappa Counder's case (supra) there was death of the plaintiff, but on the principles enunciated by the Hon'ble Madras High Court. It can very safely be held that the suit would not abate after passing of the preliminary decree even if the L.Rs. of the deceased defendant are not brought on record within the period prescribed under Article 120 of the Limitation Act 1963. Moreover, in this particular case as I have stated herein before that the legal representatives of the deceased defendant No. 1 were ordered to be substituted in R.F.A. No. 328 of 1986 and thus the case would be covered by the judgment of our own High Court in Babu Lal and others Vs Satya Narain, . It was held by Hon'ble High Court as under:-

"The legal position in respect of substitution of legal heirs in the appeal or in the revision is quite clear that once the legal heirs have been substituted in the appellate court or in revisional court, there is no necessity of bringing any application before the trial court for substituting the legal heirs in the proceedings and the proceedings do not abate for omission to make any such application."

33. This view is absolutely correct in law. The petitioner has been trying to protract the proceedings. The orders passed by the courts below and by this Court earlier had become final and conclusive. The first respondent plaintiff had complied with the order by depositing the amount of Rs. 20,000/- and the respondent-plaintiff is entitled to possession of the property.

34. Accordingly, CM (Main) stands dismissed and the lower court shall proceed to dispose of the execution petition immediately and direct the police aid to be given to the first respondent-plaintiff for taking possession of the property. There shall be no order as to costs.