Delhi District Court
Nasreen Khan vs . Sarbati Devi & Ors. on 30 October, 2017
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IN THE COURT OF SH. PRITAM SINGH, ADJ-04, SOUTH
DISTRICT, SAKET COURT, NEW DELHI
Ex. No. 2623/16
Nasreen Khan vs. Sarbati Devi & Ors.
30.10.2017
ORDER
1. By this order I shall dispose of the objections filed on behalf of JD No. 1 and wife of JD No. 2.
2. It is stated in the objections that both the judgment/decree dated 04.04.2013 as well as 19.07.2013 are neither maintainable nor enforceable as the same were passed against the dead person. The defendant no. 3, Sh. Dal Chand expired on 08.12.2012 but the decree holder, who was plaintiff in the main suit continued the said suit against the dead person. It is further stated that the judgment dated 04.04.2013 was passed against defendant no. 5/JD no. 5 only and no specific order was passed against defendant no. 1 to 4/JD no. 1 to 4. However, subsequent judgment and decree dated 19.07.2013 was passed without giving any notice to defendant no. 1 to 4/JD no. 1 to 4 and it amounts to miscarriage of justice as the same was passed behind the back of JD No. 1 to 4.
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3. In reply to the objections, it is denied that the judgment and decree passed against a dead person is void and not executable. It is further denied that the revised judgment dated 19.07.2013 was passed at the back of the JD no. 1 to 4, who were defendant no. 1 to 4 in the main suit. All other averments made in the objections were denied.
4. Rejoinder to the reply of the decree holder was filed on behalf of the objectors. The averments made in the reply were denied and the contents of the objections were reiterated and reaffirmed.
5. Arguments heard. Record perused and considered.
6. The decree holder has not disputed that the JD no. 3, Sh. Dal Chand, who was defendant no. 3 in the main suit expired on 08.12.2012. If a defendant expires during the proceedings of the suit and his/her legal- heirs are not brought on record as provided under Order 22 Rule 4 CPC, then the suit becomes abated. The decree holder being plaintiff had filed a suit for recovery of arrears of rent against the defendant no. 1 to 5. The defendant no 3 died on 08.12.2012 i.e. during the pendency of the suit. As the legal-heirs of defendant no. 3 were not brought on record nor the factum of death of defendant no. 3 was brought on record, therefore, the suit abated against defendant no. 3. However, as it was a suit for recovery 3 of a certain sum of money from all the defendants, therefore, on the death of defendant no. 3 and as his legal-heirs were not brought on record, therefore, the liability of the remaining defendants cannot be ascertained and accordingly, the suit got abated against all the defendants. Reliance can be placed on Budh Ram & Ors. Vs. Bansi & Ors. (2010) 11 SCC 476 wherein it has been held that where each one of the parties has an independent and distinct right of his own, not in inter dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit to contradictory decree on the same subject matter in the same suit.
7. In State Bank of Patiala vs. S.K. Mathur, 179 (2011) DLT 118, it has been held that on death of the principal debtor, the question of continuation of the suit against guarantor would not arise as the claim against guarantor was not divisible, it was not an independent claim. The suit abated as a whole.
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8. It is well settled law that a suit automatically gets abated, if within the period of 90 days from the date of death of defendant or one of the defendants, the legal-heirs of the deceased defendant are not brought on record and even in the absence of specific order of abatement, the suit would be deemed to be abated. Reliance can be placed on Budh Ram & Ors. Vs. Bansi & Ors. (supra) wherein it has been held, Abatement takes place automatically by application of law without any order of the court.
9. The further contentions of the objectors that they were not given the notice of the review application before reviewing the judgment dated 04.04.2013 and same was reviewed vide judgment dated 19.07.2013, therefore, it is a miscarriage of justice. I am of the considered view that this question can not be raised in the execution petition. The objectors/JDs may challenge the judgment dated 19.07.2013 in the main suit but not in execution.
10. In view of the above discussions, the objections of the JDs are allowed and the execution petition is dismissed.
11. File be consigned to the Record Room.
Announced in the Open Court. (PRITAM SINGH)
Dated : 30.10.2017 ADJ-04, South District
Saket Court, New Delhi