Rajasthan High Court - Jaipur
Smt. Shanti Rajoriya And Anr. vs Chiman Singh on 9 August, 1995
Equivalent citations: 1995(2)WLN539
JUDGMENT Gopal Lal Gupta, J.
1. This revision petition under Section 115 of the Code of Civil Procedure has been directed against the order dated 2.3.93 passed by learned Civil Judge, Bikaner whereby he dismissed the application of the petitioners filed under Section 151 CPC.
2. The facts relevant to the revision are that a suit was filed on 21.5.91 by respondent Chiman Singh claiming to be the heir of Smt. Sayar Kanwar against two persons namely Shri Harsahay and Smt. Narmada Devi challenging the registered sale deed dated 10.2.72 executed by Smt. Sayar Kanwar in favour of Shri Harsahay and Smt. Narmada Devi. It was alleged that certain persons forcibly tried to enter upon the disputed land on 10.3.91 and when Chiman Singh resisted them, they informed that 100 blghas of land had been sold to them by Smt. Sayar Kanwar. The suit was ordered to be registered on 23.5.91 and on 25.5.91 it was ordered that summons be issued to the defendants and summons be also published in news paper. The case was fixed on 1.6.91. On that date it was noticed that the summons had been published in the newspaper but none had appeared to contest the suit. The suit was ordered to proceed exparte on 20.7.91 and thereafter the plaintiffs evidence was recorded and decree was passed on 25.10.91. It is on 23.11.91 that the petitioners Smt. Shanti and Shri Kapil Kumar claiming to be daughter of Harsahay and grandson of Narmada Devi made an application under Section 151 CPC stating that both the defendant Shri Harsahay and Smt. Narmada Devi had died long before the suit was instituted and, therefore, the decree passed against them was a nullity and it be set aside. It was stated that plaintiff Chiman Singh had played fraud on the Court. The learned Court gave notice to plaintiff Chiman Singh and after recording the evidence and hearing the parties, dismissed application of the petitioners saying that they were required to file civil suit for getting the decree set aside and such order could not be passed under Section 151 CPC. Hence, this revision.
3. I have heard the arguments of the learned Counsel for the parties and perused the material placed before me. A perusal of the order under revision dated 2.3.93 goes to show that the learned trial Court was convinced that the decree passed on 25.10.91 was a nullity. However, the Court felt itself helpless in declaring so in an application under Section 151 CPC.
4. The learned Counsel for the petitioners contended that when the decree is against the dead persons, apparently it is a nullity and the petitioners should not be compelled to file a civil suit and the Court under its inherent powers should have set aside the decree. He has placed reliance on the cases of Suraj Deo v. Board of Revenue , Pillayathiri v. Laxmi Amma and Mst. Surji v. Manshi Ram .
5. As against this, the learned Counsel for the respondents submitted that the Court was functus officio after the decree was passed on 25.10,91 and, therefore, Section 151 CPC could not be pressed into service.
6. Section 151 CPC reads as follows:
151. Saving of inherent powers of Court-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
A reading of the Section makes it clear that all orders necessary for the ends of justice or to prevent abuse of process of the Court can be passed under Section 151 CPC.
7. In the instant case, as already stated, the learned trial Court had come to a definite conclusion that when the suit was filed, both the defendants Harsahay and Narmada Devi were dead and that decree passed in the case was a nullity. In my opinion, in such circumstances, the Court was not helpless. Rather it was the duty of the Court to set aside the decree in order to prevent the further abuse of the process of the Court. It is true that a decree which is nullity is always a nullity and can be set up at any time as a defence but I fail to understand why a decree which is a nullity should be allowed to stand when it has been brought to the notice of the Court even within one month of its passing. The argument that powers under Section 151 CPC can be exercised only when the suit is pending, is not tenable. Objections as to the executability of a decree on the ground that it was passed against dead person can be even set up in execution proceedings then there is no reason to hold that it cannot be set aside under Section 151 CPC, more so when it is apparent on the face of the record that the plaintiff had played a fraud on the Court by instituting the suit against dead persons. It cannot be denied that great injustice would be caused to the petitioners who are legal representatives of the deceased defendants if decree is allowed to stand. The case of "Mst Surji Box v. Manki Ram" , helps us in knowing that an application under Section 151 CPC can be entertained even after decree is passed. In that case, the plaintiff himself after he obtained decree from the Court had made an application under Section 151 CPC stating that the defendant had already died before the passing of the decree and, therefore, the decree be set aside and case be proceeded again. It was held that such an application was maintainable. In the case of Suraj Deo AIR 1982 All. 23 it was held that when stranger is vitally interested in the subject matter of the suit decreed, an application by him under Section 151 CPC to set aside exparte decree, is competent. In the instant case when the Court was convinced that the decree passed in favour of Chiman Singh was a nullity because it was passed against the dead persons, the Court ought to have allowed the application of the petitioners and should have set aside the decree. This is a case where the Court has failed to exercise jurisdiction which it possessed. It is a fit case in which interference under Section 115 CPC is called for.
8. The revision petition is, therefore, allowed and the decree passed against Harsahay and Narmada Devi on 25.10.91 is set aside. No order as to costs.