Madhya Pradesh High Court
Balkrishna Shastri vs Bhagwan Das Bairagi on 19 June, 2015
MCC No. 502/2011
Balkrishna Shastri and Another Vs. Bhagwandas Bairagi and Others
19/06/2015
Shri NK Gupta, learned senior counsel assisted by
Shri Sanjay Sharma, learned counsel for the petitioners.
None for the respondents although served.
Shri Shishir Saxena, learned counsel by giving his appearance on behalf of the legal representatives of respondent No.42, whose names are not available on record, his presence is taken on record. On asking him when the respondent No.42 has passed away, on which he submits that according to his instruction the respondent No.42 has passed on 28/11/2008. In this regard, a photo copy of death certificate is also referred by him and same is taken on record. He has also prayed to take his Vakalatnama on record, which has already filed in the matter. Same is taken on record.
The impugned order dated 07/09/2011 was passed in Review Petition No. 196/2011 subsequent to death of aforesaid respondent No.42. It is apparent from the submission of aforesaid counsel of legal representatives of respondent No.42 as well as from the aforesaid photo copy of death certificate of such respondent.
It is settled proposition of law that either in favour or against the dead person no operative order could be passed and if passed, the same is treated to be nullity. So, in such MCC No. 502/2011 Balkrishna Shastri and Another Vs. Bhagwandas Bairagi and Others premises, the impugned order firstly being passed in favour of dead person- respondent No.42 who was not alive on the date of passing of the order, deserves to be set aside and requires hearing of such Review Petition No. 196/2011 after substituting the legal representatives of such deceased- applicant who is respondent No.42 herein.
Apart from the aforesaid, it is apparent from the order under review that the same was passed without taking into consideration the provision and the spirit of Section 52 of the Transfer of Property Act because the applicants of such Civil Revision No.439/2000 in such Review Petition No.196/2011 stated themselves to be in possession during pendency of original suit between decree holder and judgment debtor. So, in view of the apparent error on the face of record, the impugned order 07/09/2011 is not sustainable. Consequently, by allowing this MCC, the same is hereby set aside. Pursuant to it, aforesaid Review Petition No. 196/2011 is hereby restored with a direction to place it before the appropriate Bench for further orders in the week commencing 27/07/2015.
(U.C.Maheshwari) (Sheel Nagu)
Judge Judge
MKB