Madhya Pradesh High Court
Smt. Umangbala Desai vs Murti Shriram Ji Mandir on 5 March, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 5th OF MARCH, 2024
MISC. PETITION No. 78 of 2024
BETWEEN:-
1. SMT. UMANGBALA DESAI W/O SHRI JATIN
KUMAR JI DEWAI, AGED ABOUT 63 YEARS,
OCCUPATION: HOUSEWIFE 17 GULMOHAR
COLONY, INDORE (MADHYA PRADESH)
2. MANOJ KASLIWAL S/O SHRI SUMATI
KUMAR KASLIWAL, AGED ABOUT 58
YEARS, OCCUPATION: BUSINESS R/O 17
GULMOHAR COLONY, INDORE (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI R. S. CHHABRA - SENIOR ADVOCATE WITH SHRI
SHREYANSH JAIN - ADVOCATE
AND
1. MURTI SHRIRAM JI MANDIR THROUGH
ADMINISTRATOR COLLECTOR INDORE
GRAM MANGALIYA ROAD, TEHSIL
SANWER DISTRICT INDORE (MADHYA
PRADESH)
2. SHRIRAM MANDIR THROUGH
ADMINISTRATOR COLLECTOR
COLLECTORATE, INDORE (MADHYA
PRADESH)
3. KAILASH S/O BABULAL (DECEASED),
SHRAVAN S/O LATE KAILASH (DECEASED)
THROUGH HEIRS SANGITA W/O LATE
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 09-03-2024
11:48:35
2
SHRAVAN OCCUPATION: HOUSEWIFE
MANGALIYA, TEHSIL SANWER, DISTRICT
INDORE (MADHYA PRADESH)
4. RAMESH S/O BABULAL, AGED ABOUT 59
YEARS, OCCUPATION: AGENT
MANGALIYA, TEHSIL SANWER, DISTRICT
INDORE (MADHYA PRADESH)
5. SATYANARAYAN S/O BABULAL
(DECEASED) MANGALIYA, TEHSIL
SANWER, DISTRICT INDORE (MADHYA
PRADESH)
6. JAGDISH S/O BABULAL, AGED ABOUT 40
YEARS, OCCUPATION: LABOURER
MANGALIYA, TEHSIL SANWER, DISTRICT
INDORE (MADHYA PRADESH)
7. RAJENDRA S/O BABULAL, AGED ABOUT 37
YEARS, OCCUPATION: DRIVER
MANGALIYA, TEHSIL SANWER, DISTRICT
INDORE (MADHYA PRADESH)
8. KESHARBAI (DECEASED BABULAL S/O
SIYARAM DAS BAIRAGI THROUGH LEGAL
REPRESENTATIVES) W/O LATE BABULAL,
AGED ABOUT 82 YEARS, OCCUPATION:
HOUSEWIFE MANGALIYA, TEHSIL
SANWER, DISTRICT INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VAIBHAV BHAGWAT - GOVERNMENT ADVOCATE FOR
RESPONDENT NOS.1 & 2/STATE)
.....................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
1] Heard finally, with the consent of the parties.
2] This petition has been filed by the petitioners/defendant
Nos.7 and 8 under Article 227 of the Constitution of India against
the order dated 13.12.2023, passed in Civil Suit New No.66-A of
2022 (Old No.99-A of 2011) by District Judge, Sanwer, District
Indore whereby the learned Judge of the trial Court has issued
notice to the L.R.s of Satyanarayan, the defendant No.3, despite
the fact that the petitioners' application under Section 151 of
CPC, contending that the suit has abated on account of death of
defendant No.3 Satyanarayan S/o. Babulal has not been decided.
3] In brief, the facts of the case are that the civil suit has been
filed by Murti Shriram Ji Mandir through Collector, Indore, the
plaintiffs/State/respondent Nos.1 and 2 for cancellation of sale
deed executed in favour of defendant Nos.7 and 8 on 11.10.1989
by Babulal (since deceased) represented through L.Rs.
respondent Nos. 3 to 8 arrayed as defendant Nos. 1 to 6 in the
suit. In the aforesaid suit, admittedly, Satyanarayan, the defendant
No.3 has died, and this fact was brought on record on 12.01.2022,
by the petitioners/defendants, but as no steps were taken by the
plaintiffs to bring the LRs of the defendant no.3, the petitioner
filed the aforesaid application under Section 151 of CPC
contending that as the L.R.s of defendant No.3 has not been
brought on record, the suit has abated. Subsequently, an
application under Order 22 Rule 4 of CPC was also filed by the
plaintiffs, on which the trial Court has issued notice vide order
dated 13.12.2023, without first deciding the application filed
u/s.151 of CPC.
4] Thus, the aforesaid order dated 13.12.2023 has been
challenged by the petitioners on the ground that since the suit has
already abated, the learned Judge of the trial Court ought not to
have issued the notices on the said application filed by the
plaintiffs u/Or.22 rule 4 of CPC, as once the suit gets abated, no
further orders can be passed in the said suit, as it gets into
suspended animation.
5] In support of his submissions, Shri R. S. Chhabra, learned
Senior counsel for the petitioner has also relied upon the decision
rendered by the Supreme Court in the case of Gurnam Singh
(Dead) Through Legal Representatives and others Vs.
Gurbachan Kaur (Dead) By Legal Representatives reported as
(2017) 13 SCC 414.
6] The prayer is opposed by shri Vaibhav Bhagvat, the
Government Advocate for the State/respondent Nos.1 and 2, and
it is submitted that the application filed by the
petitioners/defendants under Section 151 of CPC, itself was
misconceived as the suit has not abated on account of death of
defendant No.3, as his mother, Kesharbai who is also one of his
legal representatives, is already on record as defendant No.6 and
thus, it is submitted that the suit has to continue as provided
under Order 22 Rule 2 of CPC. It is submitted that since the suit
has not abated, the learned Judge of the trial Court has rightly
issued notice to the L.R.s of the defendant No.3 on the
application filed by the plaintiffs.
7] In support of his submissions, Shri Bhagwat has also relied
upon the decision rendered by the Supreme Court in the case of
Shivshankara and another Vs. H.P. Vedavyasa Char reported
as 2023 SCC OnLine SC 358.
8] In rebuttal, Shri Chhabra, learned sr. counsel for the
petitioners has submitted that if the suit had not abated, then the
plaintiffs ought not to have filed the application under Order 22
Rule 4 of CPC which can only be filed after the abatement is set
aside.
9] Heard. Having considered the rival submissions, perusal of
the documents filed on record, including the decisions rendered
by the Supreme Court as also provisions of Order 22 of CPC, it is
apparent that one of the L.Rs of the defendant No.3 was already a
party to the suit in the capacity of defendant No.6 Kesharbai, and
in such circumstances, the question of abatement of suit, in the
considered opinion of this Court, does not arise.
10] The Supreme Court in the case of Gurnam Singh (supra),
which has been relied upon by the petitioner, has held as under :-
"19. In the case at hand, both the aforementioned provisions
came in operation because the appellant and the two
respondents expired during the pendency of the second appeal
and no application was filed to bring their legal representatives
on record. As held above, the legal effect of the non-
compliance with Rules 3(2) and 4(3) of Order 22 of the Code,
therefore, came into operation resulting in dismissal of second
appeal as abated on the expiry of 90 days from 10-5-1994 i.e.
on 10-8-1994. The High Court, therefore, ceased to have
jurisdiction to decide the second appeal which stood already
dismissed on 10-8-1994. Indeed, there was no pending appeal
on and after 10-8-1994.
20. In our considered view, the appeal could be revived for
hearing only when firstly, the proposed legal representatives of
the deceased persons had filed an application for substitution
of their names and secondly, they had applied for setting aside
of the abatement under Order 22 Rule 9 of the Code and
making out therein a sufficient cause for setting aside of an
abatement and lastly, had filed an application under Section 5
of the Limitation Act seeking condonation of delay in filing the
substitution application under Order 22 Rules 3 and 4 of the
Code beyond the statutory period of 90 days. If these
applications had been allowed by the High Court, the second
appeal could have been revived for final hearing but not
otherwise. Such was not the case here because no such
applications had been filed.
21. It is a fundamental principle of law laid down by this Court
in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR
1954 SC 340] that a decree passed by the court, if it is a
nullity, its validity can be questioned in any proceeding
including in execution proceedings or even in collateral
proceedings whenever such decree is sought to be enforced by
the decree-holder. The reason is that the defect of this nature
affects the very authority of the court in passing such decree
and goes to the root of the case. This principle, in our
considered opinion, squarely applies to this case because it is a
settled principle of law that the decree passed by a court for or
against a dead person is a "nullity" (see N. Jayaram
Reddy v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC 578]
, Ashok Transport Agency v. Awadhesh Kumar [Ashok
Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567]
and Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC
570] ).
22. The appellants are the legal representatives of Defendants 2
and 4 on whom the right to sue has devolved. They had,
therefore, right to question the legality of the impugned order
inter alia on the ground of it being a nullity. Such objection, in
our opinion, could be raised in appeal or even in execution
proceedings arising out of such decree. In our view, the
objection, therefore, deserves to be upheld. It is, accordingly,
upheld.
23. In the light of the foregoing discussion, we allow the
appeal and set aside the impugned judgment/decree."
(Emphasis Supplied)
11] Whereas, in the case of Shivshankara and another
(supra), relied upon by the counsel for the respondent State, the
Supreme Court has held as under:-
"38. We are of the considered view that the same analogy is
applicable in a case where even in the event of death of one of the
defendants, when the estate/interest was being fully and
substantially represented in the suit jointly by the other defendants
along with deceased defendant and when they are also his legal
representatives. In such cases, by reason of non-impleadment of all
other legal heirs consequential to the death of the said defendant,
the defendants could not be heard to contend that the suit should
stand abated on account of non-substitution of all the other legal
representatives of the deceased defendant. In this case, it is to be
noted that along with the deceased 3rd defendant the original
defendant Nos. 1 and 2 were jointly defending their joint interest.
Hence, applying the ratio of the aforesaid decision and taking into
account the fact that the appellants/the original defendants No. 1
and 2 despite the death of original defendant No. 3 defended the
suit and preferred and prosecuted the first appeal. Upon the death
of the second appellant the joint interest is being fully and
substantially taken forward in this proceeding as well by the first
appellant along with the substituted legal representatives of the
deceased second appellant, we do not find any reason to disagree
with the conclusions and findings of the courts below for rejecting
the contention that suit ought to have held abated owing to the non-
substitution of all the legal heirs of deceased third defendant
against all defendants. For the same reason, the contention that the
suit was bad for non-joinder of necessary parties of all his legal
heirs/representatives also has to fail."
(Emphasis Supplied)
12] In the case in hand, the State has filed a suit for cancellation
of sale deed executed in favour of defendant Nos.7 and 8 on
11.10.1989 by Babulal (since deceased) represented through
L.Rs. respondent Nos. 3 to 8 arrayed as defendant Nos. 1 to 6 in
the suit, in such circumstances, if the defendant no.3 has passed
away, his right, title and estate/interest in the land is also shared
jointly with him by his mother Kesharbai, the defendant no.6.
Thus, on perusal of the aforesaid decisions also it is found that
both the decisions deal with the different issues, and thus,
Gurnamsingh (supra) is distinguishable on facts, whereas,
Shivshankara and another (supra) would be applicable in the
facts and circumstances of the case. Thus, the application filed by
the petitioners under Section 151 of CPC itself was misconceived
and the learned Judge of the trial Court has not erred in issuing
notice on the application filed by the plaintiffs under Order 22
Rule 4 of CPC as the suit has not yet abated on account of the
death of the defendant no.3.
13] Resultantly, the petition being devoid of merits, is hereby
dismissed.
(SUBODH ABHYANKAR)
JUDGE
Pankaj
