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Sitaram Dattaji Rangnekar Vs. Anant Hari Kamat Agarkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 423 of 1925
Judge
Reported inAIR1927Bom156; (1927)29BOMLR244; 101Ind.Cas.129
AppellantSitaram Dattaji Rangnekar
RespondentAnant Hari Kamat Agarkar
DispositionAppeal dismissed
Excerpt:
decree-preliminary decree on mortgage-death of one of the judgment-debtors-heirs not formally brought on record-application for final decree-heirs mentioned in application and served-final decree binding on heirs.;where subsequently to a preliminary decree on a mortgage, one of the defendants dies and the names of his heirs are not formally entered on the decree, but in the application for final decree the names of the heirs are mentioned and they are duly served, the final decree passed is binding on the heirs also. the mere omission to mention them formally in the decree under the circumstances is not sufficient to render the decree invalid. - - that omission has been subsequently made good in the execution proceedings by their names being properly entered on the record......7 died on january 3, 1917. the plaintiffs then made an application on february 21, 1918, to have a final decree on the mortgage as required by the code of civil procedure. in this application the heirs of defendant no. 7 were mentioned, but apparently the date of the death of defendant no. 7 was not indicated and a fortiori no steps were taken to have the abatement set aside, as the death of defendant no. 7 had taken place before the period of limitation allowed for bringing the heirs on the record. but on this application notices were issued to the heirs of defendant no. 7. they did not appear, and the result was that on october 26, 1918, the court passed a final decree on the mortgage. the plaintiffs then applied to execute this decree. in execution the heirs of defendants nos. 13 and.....
Judgment:

Shah, J.

1. The few facts, which are necessary for the purpose of dealing with the point raised in this second appeal, are these. A decree was passed by the trial Court on November 30, 1912. That decree was confirmed by the District Court in appeal and ultimately by the High Court. The confirmation by the High Court was on December 17, 1915. It may bo mentioned that there were several defendants ; and as defendant No. 13, who was one of the appellants in the appeal to the High Court, died, his heirs were brought on the record in the appeal to the High Court. It was a preliminary decree on a mortgage which was confirmed by the High Court. Thereafter defendant No. 7 died on January 3, 1917. The plaintiffs then made an application on February 21, 1918, to have a final decree on the mortgage as required by the Code of Civil Procedure. In this application the heirs of defendant No. 7 were mentioned, but apparently the date of the death of defendant No. 7 was not indicated and a fortiori no steps were taken to have the abatement set aside, as the death of defendant No. 7 had taken place before the period of limitation allowed for bringing the heirs on the record. But on this application notices were issued to the heirs of defendant No. 7. They did not appear, and the result was that on October 26, 1918, the Court passed a final decree on the mortgage. The plaintiffs then applied to execute this decree. In execution the heirs of defendants Nos. 13 and 7 raised an objection that the final decree was a nullity as they were not brought on the record as required by the Code.

2. The first Court disallowed this plea. It may be mentioned that the name of the deceased defendant No. 7, which was continued on the original decree unaltered, was changed on the application of the plaintiffs made on August 1, 1923. On that day the Court ordered the names of the heirs to be inserted in the original decree, and the order disallowing the objection of the heirs of defendants Nos. 7 and 13 was made on October 4, 1923.

3. There was an appeal by the heirs of defendants Nos. 7 and 13 to the District Court and the same points were raised on their behalf. But the learned District Judge disallowed these points.

4. The heirs of defendants Nos. 7 and 13 have appealed to this Court. It is urged on behalf of the heirs of defendant No. 13 that though they were brought on the record in the second appeal to the High Court, they were not formally brought on the record in the original suit. That objection requires only to bo mentioned in order to bo rejected. As they were brought on the record in the appeal, it is clear that they should be treated as being on the record of the suit.

5. It is further urged with regard to the heirs of defendant No. 7, that, as they were not mentioned in the final decree, the decree is a nullity so far as they are concerned. In other words, the heirs of defendant No. 7 question the validity of the final decree, which is under execution, on the ground that the abatement resulting from the death of defendant No. 7 was not properly set aside at the time the final decree was made, and that the heirs were not properly brought on the record. It is not open, in my opinion, to the heirs of defendant No. 7 to raise this objection in execution proceedings. When the final decree was passed, they were served with notices, and as they did not appear, the decree was made final against them. It is true that the names of the parties in the original decree were not suitably altered in conformity with what was stated in the application for the final decree. But their names were mentioned in the application for the final decree. The result of the order of the Court making the decree final was in substance and in fact to pass the final decree against the heirs of defendant No. 7. The mere omission to mention them formally in the decree under the circumstances is not sufficient to render the decree invalid. That omission has been subsequently made good in the execution proceedings by their names being properly entered on the record.

6. It seems to us that the view taken by the lower appellate Court, that the validity of the final decree as against the heirs of defendant No. 7 cannot be challenged by them in execution is correct. Under the circumstances, on the merits too, we cannot accept the contention of the appellants that the decree is invalid in consequence of the names of the heirs not being mentioned, though in fact they were mentioned in the application. Such irregularity as there may have been on the part of the plaintiffs in not making a proper application for setting aside the abatement and bringing to the notice of the Court the fact of the delay in making such an application cannot be now considered in view of the fact that the heirs, who had an opportunity to contest the proceedings, did not appear at the time, and the final decree was passed by the Court against them.

7. We dismiss the appeal with costs.


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