1. The following genealogy shows the relationship between plaintiffs Nos. 1 to 5 and Original defendants Nos. 10 to 15 who were subsequently transposed as plaintiffs Nos. 6 to 11.
JIWAJI DHERE (d)
| | | |
Ranba Laxman Subhana Nana
(d) (d) (d) (d) | | | |
--------------- | Dadu -----------
| | | (p.3) | |
Tukaram Sakharam| Ganu Jam
(p.1) (p.2) | (p.4) (p.5) ------------------------------------------------------
| | |
Yesba (d) Balu (d) Raghu (d)
| | |
------------- ----------------- --------------
| | | | | |
Shiva Nana Govinda Shamu Hindu Sadi
(d.10) (d.11) (d.12) (d.14) (d.14) (d.15)
The dispute in this litigation relates to R.S. No. 48 of Ekundi which belonged to Jivaji who is shown as the common ancestor in the genealogy. Jivaji mortgaged the land with possession with Bhiwa Bayaji Patil on 4-6-1873 for Rs. 100. Suit No. 522 of 1930 was filed for redemption of the mortgage by the descendants of Jivaji in the Senior Jahagir-Munsiff's Court at Kagal in the former Kolhapur State. On 25-11-1933 a decree for possession was passed, and the Darkhast No. 434 of 1933 possession of the mortgaged land was obtained by the mortgagors. Thereafter Raghu son of Bhiwa filed Appeal No. 57 of 1934 in the District Court at Kolhapur and the decree passed was confirmed in appeal on 1-6-1936. Raghu then filed Second Appeal No. 70 of 1936. It is stated that Raghu died on 10-9-1939 during the pendency of the appeal and the appeal was heard on 18-9-1939 without bringing his heirs on the record. The appeal was decided in favour of Raghu and the suit filed by the plaintiffs was ordered to be dismissed. The heirs and legal representatives of Raghu then filed Darkhast No. 165 of 1941 to execute the decree. It was stated in that application that Raghu died sometime after the High Court of Kolhapur decided Second Appeal No. 70 of 1936 and that the applicants were entitled to execute the decree. It appears that no objection was raised by the plaintiffs in the execution proceeding, that the decree under execution was a nullity, and the first defendant Dadu Raghu Patil obtained possession on 29-8-1943 in restitution proceedings. The plaintiffs then filed on 21-4-1951 Civil Suit No. 46 of 1951 against the heirs and legal representatives of Raghu and others for a decree for possession of the suit land from the defendants and for future mesne profits and costs of the suit. They claimed that they were illiterate and came to know of the death of Raghu 'recently' and that the first defendant and his sons defendants Nos. 2 and 3 - were co-sharers and accordingly they were impleaded as party-defendants.
2. The suit was resisted by the first defendant contending inter alia that his ancestors had become owners of the suit property by the decree passed in Second Appeal No. 70 of 1936, that it was untrue that Raghu died on 11-9-1939, that in any event the decree passed in Second Appeal No. 7 of 1936 was 'legal and valid,' that after the decree was passed by the High Court an application was filed for leave to appeal to the Supreme Court of the Kolhapur State and therein affidavits were made that Raghu died after the decree in Second Appeal No. 70 of 1936 was passed and that the defendants had filed Darkhast No. 165 of 1941 and under an order passed in the execution proceedings possession was delivered on 29-8-1943 after hearing both the parties and so long as that decision in execution proceedings was not set aside the suit filed by the plaintiffs was not maintainable. The first defendant also contended that the suit was barred by the rule of res judicata and under Section 47 of the Civil Procedure Code and also by the law of limitation.
3. The learned trial Judge on these pleadings raised the relevant issues and held that the decree in Second Appeal No. 70 of 1936 was a nullity, that the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud and the proceeding was illegal and a nullity and that the plaintiffs' contentions were barred as res judicata. He held that the suit was within limitation and the plaintiffs were entitled to a decree for possession. Accordingly the learned Judge passed a decree in favour of the plaintiffs for possession of the suit land from defendants Nos. 1 to 9 and he directed an inquiry into future mesne profits under Order 20, Rule 12(1)(c), of the Civil Procedure Code. Against that decree this appeal has been preferred by defendants Nos. 1 and 3 to 9.
4. After the appeal was filed the second plaintiff Sakharam Ranaba Dhere died and an application was made for bringing his heirs on the record but that application was dismissed by this Court. The appeal, in so far as the second plaintiff Sakharam is concerned, must, therefore, abate. It was urged that there was a joint right vested in all the plaintiffs and if the appeal abates qua the second plaintiff, the entire appeal must abate. But this court in a large number of cases has held that where in a suit for possession by several plaintiffs a decree has been passed and before the appeal is decided one of the plaintiffs dies, the abatement is qua the share of that plaintiff and not in its entirety See e.g. Shankarbhai Monorbhai v. Motilal Ramdas, ILR Bom 118: AIR 1925 Bom 122, and Chandarsang v. Khimabhai, ILR Bom 718. It cannot, therefore be held that the appeal abates in its entirety.
5. Second Appeal No. 70 of 1936 in the Kolhapur High Court was heard on 18-9-1939 and judgment was delivered by the court on 5-10-1939. It is the case of the plaintiffs that Raghu, the Appellant in Second Appeal No. 70 of 1936, died on 11-9-1939 and the decree being in favour of a dead person was a nullity. But in our judgment, the question whether Raghu died before 18-9-1939 when the Second Appeal was heard and on that account the decree is a nullity, cannot be permitted to be raised in this suit. As we have already observed, in Darkhast No. 165 of 1941 an application was filed by the heirs and legal representative of Raghu to enforce the claim or restitution on the allegation that Raghu died after the decree was passed by the Kolhapur High Court in Second Appeal No. 70 of 1936. The plaintiffs in this suit were served with notice of the Darkhast and they did not raise an objection that Raghu died before the date of the decree of the Kolhapur High Court and that the decree was a nullity. From the averments made in the plaint it appears that the plaintiffs were heard on the objections sought to be raised by them. The executing court having passed an order for delivery of possession in favour of the heirs and legal representatives of Raghu directing restitution, we are of the view that in a separate suit the validity of the order cannot be challenged. The infirmity if any to which the order passed by the executing court was subject it had to be rectified by an appeal from that order and not by a suit. Accordingly in our judgment, the suit filed by the plaintiffs was not maintainable.
6. The learned Judge in the court below has recorded in affirmative finding on the issue that the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud. But neither party has led any evidence on the plea of fraud, and not even the particulars of fraud have been furnished. It is difficult to sustain the view of the learned trial Judge that the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud.
7. It was contended by Mr. Paranjape, who appears on behalf of the plaintiffs-respondents, that the question whether the decree sought to be enforced is a nullity could not be raised in the execution proceeding. Mr. Paranjape invited our attention to decisions of the Nagpur, and Madras High Courts in support of the contention that an objection whether a decree sought to be enforced is nullity cannot be raised in execution and the objection can be raised only in a separate suit. It is unnecessary for us to enter upon a detailed examination of the authorities relied upon because in this court the question has been decided by a Division Bench of this court. In Shivaji Sayaji v. Vithal Narayan : AIR1927Bom53 , sir Amberson Marten C.J. and Mr. Justice Percival held:
'Where a defendant dies before the bearing of the suit against him in concluded and a decree is passed against him, without his legal representative being brought on record the decree is a nullity and cannot to executed against the legal representative. An objection of this nature can be taken in execution proceedings, and it is not necessary to bring a separate suit.'
Mr. Paranjape says that even though this court has taken the view that the objection to the executability of the decree can be raised in execution proceedings relying upon the authority of Shivaji's case : AIR1927Bom53 , a party affected by the decree is not bound to raise the objection, and if he does not raise the objection, he is, notwithstanding the orders passed in the execution proceeding, entitled to raise that contention in a suit, and, therefore, says Mr. Paranjape, the suit filed by the plaintiffs in this case was in law maintainable. Now, a court executing a decree is entitled to try all questions relating to execution, discharge or satisfaction of a decree: and according to the decision in Shivaji's case an objection that the decree under execution is a nullity and incapable of execution is one which can be raised in execution proceedings. It follows that the objection is one relating to execution of a decree, and if it is of that nature, in our judgment, it must be raised in execution and cannot be permitted to be raised in a separate suit. In delivering the principal judgment of the Court, Marten, C.J. observed:
'The question here is whether the decree was a nullity, being a decree against a dead man. Accordingly, in Sripad Narain Rai v. Tribeni Misra, ILR All 423: AIR 1918 All 226 which was decided by Sir Henry Richards and Mr. Justice Banerji, it was held that an objection of that nature could be taken in Darkhast proceedings. IN this respect we have been referred to Section 47 of the Civil Procedure Code, and to the notes in Mr. Mulla's text book on that Act at p. 124, where the learned author states: 'Having regard to the decisions that questions relating to the validity of a decree cannot be tried in executions proceedings, but must be decided in a regular suit, the procedure by suit would appear to be the proper one. But here, as I have already said, it is a question of the decree being a nullity.'
It is evident from the observations made by Chief Justice Marten that the question whether a decree sought to be executed was a nullity could be raised in execution proceedings and was one relating to execution and, therefore, under Section 47 of the Civil Procedure Code the court was bound to try that question and the parties could not agitate the same in a separate suit. IN our judgment, 'Shivaji's case is a complete answer to the argument advanced by Mr. Paranjape, and we do not think it necessary to discuss the other authorities to which our attention was invited, e.g., Sethurajan v. Guruswami Pathar, AIR 1937 Mad 509, and Mangal Prasad Hiraram v. Tekal. AIR 1946 Nag 275. It may be sufficient to observe however that these cases were not cases where it was pleaded that there was abatement of the appeal by the death of the original Decree-holder.
8. Strong reliance was sought to be placed by Mr. Paranjape upon a judgment of their Lordships of the Privy Council in Mt. Rashid-Un-Nisa v. Muhammad Ismail Khan, 36 Ind App 168. It was contended, relying upon that judgment, that even if a decree has been executed it is open to a party affected by the execution to file a separate suit and to obtain relief. Now, Rashid-Un-Nisa's case was a case on very special facts. Their Lordships held that in a case where the minor was not represented either in a suit or in the execution proceeding consequent upon the decree and execution was levied against the property of the minor, the minor in his suit filed for a declaration that the decrees and the sales in execution proceedings affecting the minor's share in her father's estate were invalid, was entitled to a decree that the decrees and the sale proceedings were invalid. The principle of that case can, in our judgment, have no application to the facts of the present case, because the plaintiffs in the suit in this case were before the court in the execution proceedings & in their presence the executing court directed restitution and that restitution can only be directed on the footing that there was a valid and proper decree passed by the High Court in Second Appeal No. 70 of 1936. After the court orders execution on the view that there is an executable decree, in our judgment, by the operation of the rule of res judicata any further investigation into the validity of that decree cannot be permitted to be raised in an independent suit. We are, therefore, unable to agree with the view of the learned trial Judge that the suit filed by the plaintiffs was maintainable.
9. Mr. Kotwal, who appears on behalf of the defendants, contends that even though an application for bringing the heirs and legal representatives of the second plaintiff has been dismissed and the appeal qua the second plaintiff has abated, in exercise of the powers of this court under Section 151 read with Order 41, Rule 20 of the Civil Procedure Code, the heirs of the second plaintiff may be permitted to be brought on the record: and in support of that contention our attention was invited to two decision of this court. In Lakhmichand Rewachand v. Kachubhai Gulabchand, ILR Bom 393, a partition suit had abated because of the death of the plaintiff. Thereafter the son of the plaintiff applied more than 16 years after the date of the death of the original plaintiff for the issue of a commission to effect partition according to the rights declared in the petition decree. The court held that the suit had abated as regards the applicant's father and the application for setting aside by adding the applicant as the legal representative was barred by the law of limitation. The court also held that in a suit for partition all the parties should be before the court and there being nothing in the Civil Procedure Code limiting or affecting the inherent power of the court to make such orders as might be necessary for the ends of justice, the application should be granted. It has however to be noted that in that case a preliminary decree was passed before the death of the plaintiff, and no further proceedings were taken under the decree. A suit cannot abate after the rights and obligations of the parties have merged in the decree of a court. If a party after the passing of the preliminary decree in a partition suit dies, the proceedings may have to be kept undisposed of sine die and in such a case the court has inherent jurisdiction in a proper case to restore the proceedings and to dispose of the same after working out the rights of the parties under the preliminary decree and according to law. This case can have no application to the present case where there is no preliminary decree passed.
10. The other case relied upon was Shankerbhai Manorbhai v. Motilal Ramdas, ILR Bom 118: AIR 1925 Bom 122. In that case the original plaintiffs had sued to recover possession of a house site from the defendants. Second plaintiff died during the pendency of the suit and his widow was joined as his legal representative. A decree was then passed in favour of the original plaintiffs and the heirs and legal representatives of the second plaintiff. The defendants then appealed against the decree to the District Court, and during the pendency of the appeal the heir of the original second plaintiff died. Nearly 16 months after the date on which the heir of the second plaintiff died, it was brought to the notice of the defendants that the first plaintiff was the heir and the legal representative of the deceased person and the appeal should proceed. That application was disallowed and it was held by the district Court that the appeal had abated qua the heir of the second plaintiff. It was further held that the shares of the co-owners were not ascertained and the appeal had, therefore, abated as a whole. This court in second appeal held that the appeal had abated as against the deceased plaintiff only and the appeal could proceed against the original first plaintiff. It was urged before this court that the inherent powers of an Appellate Court could be exercised to implead the heirs and legal representative of the heir of the original second plaintiff. This court observed that it was not proper in the circumstances of the case to make any order in exercise of the inherent powers. This observation does not support the contention that the court is invested with any inherent powers to implead the heirs and legal representative of a person who is dead and whose heirs have not been permitted to be brought on the record. The court merely assumed that it was invested with the power, and held that in the circumstances of the case the exercise of that power was not called for.
11. In Bad Narayan v. East Indian Rly., Co., ILR Pat 755: : AIR1927Pat23 , it was held by a Division Bench of the Patna High Court:
'There is no power in the court under order XLI, Rule 20, Civil Procedure Code, 1908, to receive an appeal or to give power to an appellant to present an appeal when there is none at all in the file of the court.'
In that case, a joint decree was passed in favour of seven plaintiffs and the defendants preferred an appeal to the District Court but impleaded some only of the plaintiffs as respondents. At the hearing of the appeal it was objected on behalf of the respondents that the appeal was incompetent. But the District Judge, acting under the provision of order XLI, Rule 20, code of Civil Procedure, added the omitted respondents as respondents to the appeal and dealt with the appeal. It was held by the Patna High Court that no such powers could be exercised under Order 41, Rule 20, of the Civil Procedure Code, as the time for filing an appeal against the person omitted to be impleaded had expired.
12. In Midnapur Zamindary Co. Ltd. v. Amulya Nath Roy ILR Cal 752: : AIR1926Cal893 , the head note reads as under:
'Several co-plaintiffs sued the defendants for joint possession and obtained a decree. the defendants-appellants failed to substitute in time the legal representative of one of the plaintiffs-respondents who had died during the pendency of the second appeal to the High Court. At the hearing of the second appeal the respondents took a preliminary objection that the appeal could not proceed against the other co-respondents in the absence of the dead co-respondents in the absence of the dead co-respondents, or his duly substituted representative. Held, that he appeal abated as whole.'
In that case, Mr. Justice Page also held that the heirs could not be impleaded under Order 41, Rule 20, of the Civil Procedure Code. The learned Judge observed:
'In this case I am of opinion that the court would not be justified in exercising its discretion under Order XLI, Rule 20 in favour of the appellants for this among other sufficient reasons, that if the court were to allow the appellants to add the representative of the deceased plaintiff as a party to the appeal the court would be acting in a manner wholly inconsistent with its own previous order, by which the application of the appellants for the substitution of the representative of the deceased plaintiff as a respondent was rejected upon the ground that the appellants had neglected to apply for substitution within the time provided in that behalf, and had not been able to satisfy the court that there was any sufficient ground for an extension of time being granted.'
If under Order 41, Rule 20, the heirs could not be substituted, much less could they be substituted in exercise of powers under Section 151 of the Civil Procedure Code.
13. We may observe that we are not in this case called upon to consider whether the estate of the second plaintiff is represented in these proceedings. If the heirs of the second plaintiff are already on the record, his estate may be deemed to be represented. But without deciding that question, we have directed that the name of the second plaintiff who is dead be struck off from the record.
14. On the view taken by us, the appeal will be allowed and the plaintiffs' suit for possession of the suit lands dismissed wit costs throughout.
15. Appeal allowed.