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1 - 10 of 12 (0.19 seconds)Kaushalya Devi & Ors vs Shri K.L. Bansal on 3 December, 1968
7. Mr. Sahay has next urged that the obiection that the decree is a nullity can be raised at any stage and in the present case the correct legal representative of the deceased not being on record, the decree was a nullity. He has placed reliance on certain decisions of the Supreme Court as also of this Court. The first case on which reliance
is being placed is the case of Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838. The facts of this case have no application to the facts of the present case. In that case there was a suit under Delhi and Aimer Rent Control Act for ejectment of the defendant. The parties had entered into a compromise that the decree for ejectment be passed against the defendant on certain terms. It was held that the decree passed on the basis of an award was is contravention of Section 13 (1) of the Act. because the decree had been passed by the court without satisfying itself that the ground of eviction existed. Therefore the decree was a nullity. This was thus a case of violation of a mandatory provision of law.
Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman & Ors on 18 March, 1970
The other case on which reliance has been placed is Vasu-deva Dhaniibhai Modi v. Rajabhai Abdul Rehman. AIR 1970 SC 1475. This was a case under the Bombay Rents. Hotel and Lodging House Rates (Control) Act (57 of 1947). A suit was filed for eiect-ment and for payment of arrears of rent. The court of first instance dismissed the suit, but on appeal a decree for ejectment was passed and a revision against the same before the High Court was unsuccessful. A petition for special leave was then filed and granted, but subsequently vacated. During the course of execution the contention raised was that the court of Small Causes had no jurisdiction to entertain the suit and its decree on that account was a nullity. Ultimately, the matter came up before the Supreme Court by special leave. Their Lordships held that the court exercising power under the Act aforesaid has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Their Lordships held that when a decree is made by a court which has no jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the obiection appears on the face of the record. Reliance has been placed on this dictum. It will, however, appear, that their Lordships have gone further and laid down-
Jaggernath Singh vs Narayan Sarogi on 9 October, 1964
The question as to who is the legal representative of a deceased party is a mixed question of law and fact. The existence or otherwise of a person, who can be in law treated as legal representative is purely ,a question of fact. The appellants cannot obviously be allowed to raise the question of fact in respect of the mother being alive at the relevant time for the first, time during the course of the execution proceedings. My attention has been drawn to a decision of a learned single Judge in the case of Jaggernath Singh v. Narayan Sarogi AIR 1965 Pat 300. In that case the original plaintiff had died and his minor son under the guardianship of his mether, had been substituted in his place. The objection was raised on the ground that the widow had not been substituted. The first appellate Court overruled the objection on the ground of abatement. The learned Judge held that the point could not be raised for the first time in the appeal. In that ease reliance was placed by the learned Judge on the fact that the defendant had kept silent over the matter all through while the suit was pending in the trial Court and it had not taken any ground relating to this point before the lower appellate court and further that it could not be taken that the defendant was not aware of the existence of the widow.
Chaturbujadoss Kushaldoss And Sons vs Minor Rajamanicka Mudali By Father And ... on 1 May, 1930
J. in the case of Chaturbhujadoss Kushaldoss and Sons v. Rajamanicka Mudali. AIR 1930 Mad 930 have been quoted therein and may usefully be reproduced here-
Section 47 in The Code of Civil Procedure, 1908 [Entire Act]
N.K. Mohammad Sulaiman vs N. C. Mohammad Ismail And Others on 23 September, 1965
9. On the question of implead-ing the correct legal heir of the deceased, learned counsel for the respondents has placed reliance on the decision of the Supreme Court in Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb, AIR 1966 SC 792. -In this case their Lordships referred to different cases illustrative of the principles laid down by them. The observations of Madhavan Nair.
Jitu Mahton vs Widow Of Puran Mohton And Ors. on 12 September, 1960
In the case of Jitu Mahton v. Widow of Puran Mahton, AIR 1961 Pat 96 the question of abatement had been raised during the course of the appeal itself. The appeal stood dismissed as against some of the defendant respondents and the question for determination by the learned Judge was whether the appeal in their absence was incompetent. It was held that although in a suit against wrongdoers it is not necessary to implead all the wrongdoers yet when the plaintiff has made his choice and obtained a decree against all. he cannot proceed further against some only so as to lead to an inconsistency. The learned Judge was not called upon to decide as to whether the objection could be raised at such a late stage as the execution proceeding it not having been raised earlier. The decision has, therefore, no application to the facts of the present case.
Gobind Lal vs Bandhu Ram Kahar And Ors. on 4 November, 1960
Another decision on which reliance was placed, is Gobind Lal v. Bandhu Ram Kahar, AIR 1961 Pat 240. The point involved was similar to the one in the earlier case. There was an application to substitute the heirs of the defendant on his death at the appellate stage and the whole appeal was held to have abated. It will appear that even in this case the question had come up at the appellate stage. An objection was raised then. This case also thus has no relevance to the facts of the instant case.
Dakho Prasad Singh And Ors. vs Baijnath Sah And Ors. on 7 February, 1966
Another decision of this Court is the case Dakho Prasad Singh v. Baijnath Sah. 1966 BLJR 1009. The suit in that case was for declaration of title and possession over certain lands which had been subject-matter of dispute in a proceeding under Section 145 of the Code of Criminal Procedure. During the pendency of the suit one of the defendants died. An objection was taken
by the other defendants that in the absence of the substitution of his legal representatives, the whole suit had abated. The trial Court accepted the ground and held that the suit was not properly constituted. It is obvious thus that the objection with regard to the abatement of the suit had been taken at the earliest stage. The learned Judges held in this case that if the interest of the deceased defendant could have been shown to be separate from that of the other defendants as claimed in the case under Section 145 of the Code of Criminal Procedure, the position would have been different and the entire suit would not have abated even though the deceased defendant was not substituted by his legal representatives after his death, but since the interest of defendants was not shown to be separate the entire suit had abated. Reliance has been placed by Mr. Sahay on this case to derive aid therefrom for the proposition that where the interests are not separate or separable the whole suit would abate. It is said that in the instant case also the defendants were termed as joint wrongdoers and therefore the omission to bring on record the correct legal representative of the deceased defendant, resulted in the abatement of the entire suit. As I have said earlier, it is not open to the appellants at this stage to show that the legal representative brought on record was not the correct legal representative and in the absence of the real legal representative the suit had abated. The position in this case, in the circumstances aforesaid, is of no avail to the appellants.