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Ram Kishan Vs. Kartar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution Second Appeal No. 1374 of 1967
Judge
Reported inAIR1969P& H214
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 4
AppellantRam Kishan
RespondentKartar Singh and ors.
Appellant Advocate Y.P. Gandhi, Adv.
Respondent Advocate R.K. Aggarwal, Adv.
Cases ReferredTota Ram v. Kundan
Excerpt:
.....the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of..........defendant-appellants' counsel made the following statement:'we agree to part with one-third of the suit land in favour of the plaintiff - respondents. their suit, with regard to the remaining two-thirds of the land, be dismissed. the parties be left to bear their own costs throughout.'the same was also signed by kartar singh, defendant. thereafter the statement of the counsel for the plaintiff-respondents was recorded and it was to the following effect:'i have heard the statement of mr. raj kumar counsel for the defendant-appellants. we agree to take one-third of the suit land in full and final settlement of our claim and give up our claim to the remaining two-thirds of the suit land. parties be left to bear their own costs through-out.'it might be mentioned that before the decision of.....
Judgment:

1. In 1954, Mahan Singh through his Mukhtar-I-am Ram Kishan and Ralla Singh, residents of Brahman Majra, tehsil Bassi, brought a suit against Kartar Singh and others for possession of two pieces of land, hereinafter called `A' and `B'. `A' land consisted of 48 Bighas 18 Biswas, while B of 71 Bighas 18 Biswas. These lands were situated in the village of the plaintiffs. The trial court decreed the plaintiffs' suit regarding the whole of the land `B' and only qua 2/3rd of land 'A'. The suit regarding the remaining 1/3rd of `A' land was dismissed. Against this decision, both parties went in appeal before the learned District Judge, Kapurthala, Camp Bassi. The learned Judge partly accepted the defendants' appeal with the result that the suit was decreed regarding land `B' but dismissed qua land `A'. Thereafter, the defendants came to this Court in second appeal (R. S. A. 18 of 1957). On 17th of May, 1962, the matter came before D.K. Mahajan, J. and the parties effected a compromise. The defendant-appellants' counsel made the following statement:

'We agree to part with one-third of the suit land in favour of the plaintiff - respondents. Their suit, with regard to the remaining two-thirds of the land, be dismissed. The parties be left to bear their own costs throughout.'

The same was also signed by Kartar Singh, defendant. Thereafter the statement of the counsel for the plaintiff-respondents was recorded and it was to the following effect:

'I have heard the statement of Mr. Raj Kumar counsel for the defendant-appellants. We agree to take one-third of the suit land in full and final settlement of our claim and give up our claim to the remaining two-thirds of the suit land. Parties be left to bear their own costs through-out.'

It might be mentioned that before the decision of this Court on 17-5-1962, the plaintiffs had obtained possession of the land 'B', while land 'A' still remained with the defendants. When the matter had been settled here between the parties on 17-5-1962, the defendants made an application under S. 144. Code of Civil Procedure, in the executing court for the restitution of 2/3rd of land 'B'. The following two objections were then raised by Ram Kishan, the legal representative of Mahan Singh and Ralla Singh, plaintiffs, both of whom had died in the meantime:

(i) The decree passed by the Court on 17-5-1962 was a nullity, because the appeal before this Court had abated, inasmuch as one of the defendant-appellants, namely Brahm Singh, had died before that date and his legal representatives had not brought on the record: and (ii) even if the decree of this Court was valid in law, the valuation of the entire land be made and the plaintiffs be allowed to keep with them 'B' land of the value of their 1/3rd share in land 'A'. On the pleadings of the parties, the following issues were framed:

1. Whether the decree passed by the Punjab High Court inter partes is a nullity and unenforceable for the reasons stated in para No.1 of the preliminary objections of the written reply?

2. If issue No. 1 is not proved to what share of land the applicants are entitled to claim from the respondents?

Under Issue No. 1, the executing court held that the decree passed by this Court was valid and not a nullity. Under issue No. 2, its finding was as under:

'The learned counsel for the contesting respondent fairly and frankly conceded that the applicants are entitled to 2/3rd of the land mentioned in para 'B' under the decree sought to be executed. So this issue is decided accordingly.'

2. After hearing the counsel for the parties. I am of the view that there is no merit in this appeal. Both the courts below have correctly found that the decree passed by this Court on 17-5-1962 was not a nullity. Even if one of the appellants at that time, namely Brahm Singh, was dead on 17-5-1962 when the said decree was passed, it cannot be held that it was a nullity. At the utmost, it could be said that it was erroneous or contrary to law and liable to be set aside. The Court did not lack inherent jurisdiction to try the matter before it and it is only when that happens that the decree passed by it becomes a nullity. An erroneous decree can be set aside by taking resort to appropriate proceedings by way of appeal, revision or review. It was held by a Division Bench consisting of Shadi Lal, C.J. and Johnstone, J. in Tota Ram v. Kundan, AIR 1928 Lah 784-

' A decree passed after death of a party to a suit or appeal is not an absolute nullity. Such a decree is not void nor is it open to collateral attack but it is erroneous and liable to be set aside. The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased party and directs that the case be retried in the presence of his legal representative from the stage which it had reached immediately before the date of the death. This procedure place all the parties to the litigation in the same position in which they would have been if the legal representative had been impleaded at the proper time.'

If anybody was aggrieved by that decision, he could file a review petition, before D.K. Mahajan, J. or could go up in Letters Patent Appeal against the said judgment. But it cannot be said that the decree passed by this Court on 17.5.1962 was a nullity.

3. There is another way also of looking at the matter. The plaintiffs, in the instant case, had filed a suit for possession of lands 'A' and 'B'. The learned District Judge had decreed their suit qua land 'B'. The defendants had come to this Court in second appeal and if in that appeal, the plaintiffs gave up their claim to 2/3rd share in the entire land and effected a compromise, there was no legal impediment in their doing so, even if one of the defendant-appellants was dead on that date. The plaintiffs cannot now say that they had not validly given up their 2/3rd share in the land, because one of the defendants was not alive on 17-5-1962.

4. The result is that this appeal fails and is dismissed, but with no order as to costs.

5. RSK/D.V.C.

6. Appeal dismissed.


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