Sharad Manohar, J.
1. This application has got to be allowed on the simple ground that the order passed by the learned Judge dismissing the Darkhast cannot just be sustained having regard to the provisions and principles of our procedural law.
2. Just a few facts are enough for the purpose of formulating the question involved. The suit property belonged jointly to one Pradhan Mariyali and his son Ramchandra Mariyali. Pradhan Mariyali admittedly had two wives. One, the mother of Ramchandra and the other, one Malkavva, the step mother of Ramchandra. It is alleged that Pradhan had a third wife by name Parubai; but that is not an admitted fact. The present petitioners are the heirs, that is to say, wife, son and daughter of Ramchandra. Ramchandra died on 26-5-1967. The present petitioners filed Civil Suit No. 91/1981 for partition and possession of the joint family property. Pradhan Malkappa Mariyali was the defendant in that suit. Pradhan died pending the suit and the petitioners brought on record Malkavva as the heir and legal representative of Pradhan in the suit. The present respondents Nos. 1 to 3 claim themselves to be the sons of Parubai. But the very fact that Parubai was the wife of Pradhan is not an admitted fact and whether the present respondents 1 to 3 are the children of Parubai, is neither an admitted nor an established. However, as will be presently pointed out, these questions are not quite relevant in these proceedings.
3. After Smt. Malkavva was brought on record in the suit of the petitioners as the heir and legal representative of Pradhan, the suit proceeded and a compromise decree was passed in favour of the parties to the suit. Darkhast No. 13 of 1982 was filed by the petitioners for execution of the said partition decree. In the said Darkhast an order was passed by the petitioners for execution of the said partition decree. In the said Darkhast an order was passed by the Court on 10-2-1982 appointing a Commissioner for the purpose of taking certain steps for the purpose of partition of the suit property. But while this Darkhast was proceeding Malkavva also died. Information about Malkavva's death was given by the petitioners to the Court. In the meantime the Commissioner has made his report as regards the manner in which the partition should be affected and the petitioners move the Court for the purpose of execution of the decree. Their contention was that they themselves were the heirs of deceased Malkavva and they were advised to contend that even without bringing the other heirs on record the Darkhast could proceed. When the execution was likely to proceed the present respondents Nos. 1,2, and 3 made applications as obstructionists. Hence an application was made by the petitioners to the Court for removal of their obstructions and that is how respondents Nos. 1 to 3 came to be impleaded in the Darkhast proceedings as the obstructionists. The contention of the obstructionists was that in addition to Malkavva they themselves were also heirs of deceased Pradhan, they being the sons of Parubai, who was his third wife. Their further contention was that since they were the heirs of deceased Pradhan the suit could not have been proceeded with the compromise decree cold not have been passed by the Court unless they were brought on record. Their contention was that the decree, therefore, was not binding upon them.
4. It appears that the trial Court accepted this contention. The trial Court also held that the Darkhast cannot proceed in the absence of heirs of the decree-holders having been brought on record. The final order passed by the Court, therefore, was that the Darkhast should be dismissed. It is against this order of dismissal of Darkhast that the present revisions application is filed by the present petitioners to this Court.
5. To my mind, neither the order passed by the learned Judge to the remedies sought to be resorted by respondents Nos. 1 to 3 can be sustained or justified. To the extent to which the order of dismissal of Darkhast is based upon the fact that no legal heirs of judgment debtor Malkavva were brought on record, such an order cannot be justified in view of the provisions of section 50 of the Civil Procedure Code read with Order 22, Rules 12 of the same. It is sheer elementary proposition that a Darkhast cannot proceed unless the heirs of judgment-debtor are brought on record, because in our systems of procedural a jurisprudence there cannot be any order passed in the air. Our system of procedural law demands and postulates that there has got to be a rem between the parties and the order is essentially got to be made in favour of one of the parties and against the other. It may be that certain judgments operate in rem whereas the others operate in personam with the result the case in which the judgment operates in rem, it binds not only the persons who are parties to the proceedings but also who are not such parties. But even in such cases, in every judicial proceedings there must exist res one or more parties arrayed against one or more of the others. If a Darkhast is to proceed, there must be somebody against whom an order could be passed in the Darkhast. It may be the estate of the deceased judgment-debtor; but the estate of the deceased judgment-debtor has got to be represented. That is the reason why section 50 of the Civil Procedure Code provides that in case of the death of the judgment-debtor before the satisfaction of the decree passed by a Court, the decree holder is given liberty to bring heirs of the judgment debtor in order to get complete satisfaction of the decree. No doubt it is an enabling provision; but that does not means that the decree holder can forget about the requirement of bringing the heirs on record, even if he wants to proceed with the Darkhast. The word 'may' used in section 50(1) of the C.P.C. only means that if the decree holder wants to execute the decree further he is at liberty to bring the heirs of the judgment-debtor on record. The word does not means that without following the procedure contemplated by section 50(1) of the Code, the decree holder can just proceed against the estate without bringing on record somebody to represent the estate of the judgment-debtor. The only meaning of Order 22, Rule 12 is that even the absence of these heirs being brought on record will not result in abatement of the Darkhast. The decree holder has liberty to bring the heirs on record at any time, subject of course to the law of limitation relating to the filing of the Darkhast; but when such an application is made the Court has got no discretion but to grant the application with a view to have the estate of the judgment-debtor duly represented. The order dismissing darkhast on the ground that the heirs are not brought on record cannot be justified except perhaps in extreme cases. I am qualifying this proposition of law by addition of the words 'in extreme cases' because there may be occasions when the decree holder may be unjustifiably lay in the might of bringing the appropriate heirs on record or may be wanting to play pranks with the Court in that behalf. In such circumstances the Court may be justified in dismissing the Darkhast; but even in such cases it may be perfectly open for the decree-holder to file another Darkhast after bringing the heirs of the deceased judgment-debtor on record.
No such facts are brought on record in this case from which it can be inferred that the decree-holders committed any default in the matter of bringing the heirs on record. It is the contention of the decree-holders that the obstructionists are not the heirs of Pradhan. That contention may or may not be correct. But from that it cannot be said that the judgment debtors were not prepared to comply with the implied requirement of section 50(1) of the Code and the order dismissing the darkhast on the ground that the petitioners had not brought the legal representatives of the deceased judgment-debtor on record cannot, therefore, be sustained.
6. So far as the obstructionists respondents No. 1 to 3 are concerned to my mind the remedy sought to be resorted to by them is wholly misconceived. It appears to be their contention that the decree passed without they being brought on record as heirs and legal representative of the deceased Pradhan is bad in law amounting to nullity and hence Executing Court is not entitled to execute that decree. This reasoning is susceptible to many answers. In the first place my attention was not invited to any fraud practiced upon the Court when the Court had passed an order bringing on record Malkavva as the heir and legal representative of the deceased Pradhan. The contention of the respondents appears to be that they were the children of Parubai, who was one of the wives, of the deceased Pradhan and hence they also were the legal representatives of deceased Pradhan and as such should have been brought on record as heirs of deceased Pradhan. In short, the contention is that in the absence of such lawful heirs having been brought on record, the ultimate decree passed in the suit become in-effective and was of no legal consequence. This contention is not well founded. When the defendant dies and the Court is required to proceed with the suit what the Court has to see is whether the estate of the deceased defendant is sufficiently represented. If the estate is sufficiently represented then the fact that some of the heirs were not brought on record does not vitiate or invalidate the ultimate decree. It has been repeatedly held by the Court that the question as to whether the person was the heir of the of the deceased defendant or not and was properly brought on record as the heir and legal representative of the deceased or not can be decided by the Court in the very suit or proceeding; but that decision does not become res judicate because that question is not directly and substantially in issue in the suit. It is open for the claimants who claim to be the heirs and legal representatives of the defendants to take appropriate proceedings for the purpose of establishing their claim that they were the heirs and legal representatives of the deceased defendant to the exclusion or in addition to the persons clearly brought on record by the plaintiffs. But the decree passed by the Court is not vitiated merely because all the heirs of the deceased defendant were not brought on record. The decree is a valid and lawful decree and the Executing Court has got to execute as it stands.
7. Even in case where fraud is specifically alleged by the persons claiming to be the heirs and legal representatives of the deceased defendant in support of their contention that they should have been brought on record as the legal representatives of the deceased, the courts have held that for vindicating this contention the remedy for the claimants is to file a separate suit. They cannot call upon the Executing Court to go behind the decree and to hold that the decree is invalid.
The position in the present case is even worse. No direct averment of fraud as such is even suggested by the respondents. I do not even for a moment wish to suggest that the plea of fraud is not open for them. It is perfectly open for these respondents to institute appropriate proceedings including a suit for the purpose of vindicating their contention that they were the legitimate children of deceased Pradhan. It may be even open for them to contend that the very fact that the decree obtained by the present petitioners without impleading them as heirs and legal representatives of the deceased Pradhan itself constituted a fraud upon the Court and upon themselves. I do not wish to express any opinion on the question whether such plea would be open for them or even if it is set up by them in appropriate proceedings or whether it should be accepted by the Court. Everything will depend upon the nature of the evidence led by the parties and nature of issues arising in the suit. Point is that so far as the execution proceeding is concerned, the Executing Court has to execute the decree as it stands provided of course there is valid darkhast filed in which the heirs and legal representatives of the deceased judgment-debtor are brought on record. Mr. Rege the learned advocate appearing for the petitioners made a statement before this Court that the petitioners have no desire to procrastinate in the matter of bringing the heirs of the deceased Malkavva on record in these darkhast proceedings. He is prepared to bring even the present respondents as the heirs and legal representatives of the deceased Malkavva without prejudice, however, to the petitioners' contention that the respondents are not the legitimate children of the deceased Pradhan. If such application is made by the petitioners without prejudice to their contention as mentioned above, it will be incumbent upon the trial Court to pass an order bringing the persons mentioned in the application on record in the Darkhast as the heirs and legal representatives of deceased Malkavva, without prejudice to the contention of the petitioners that they do not admit the respondents to be the legal heirs either of Pradhan or of Malkavva.
After the heirs and legal representatives are so brought on record, the Darkhast shall have to proceed and the decree shall have to be executed as it stands. However, at the same time it will be perfectly open for the respondents to take such appropriate proceedings as they may be advised for the purpose of establishing their claim that they were the legal heirs of deceased Pradhan and also to contend that the decree obtained by the present petitioners against Malkavva was not valid. If such as suit is filed, it will be decided by the Court on its own merits. I may make it clear that none of the various observations in this judgment will be taken as expression of my opinion as regards the tenability of any of the contentions of either of the parties as regards the question of facts.
8. The Rule is made absolute as mentioned above.
However, in the circumstances of the case, there shall be no order as to costs.