1. This revision petition has been filed by Pawan Kumar, Pardeep Kumar minor sons and Miss Manju minor daughter of Om Parkash against the order by the Subordinate Judge 1st Class, Sirsa dated May 26, 1979.
2. Shrimati Sukhi Devi filed a suit for ejectment against M/s. Ladu Ram Gheru Lal, Gheru Lal, Harish Chand, Om Parkash and Kishan Lal from the shop in dispute situated in village Elnabad TehsiL Sirsa. Harish Chander, Om Parkash and Kishan Lal defendants were the sons of Gheru Lal defendant: Harish Chander, and Om Parkash were proceeded ex parte in the trial Court. The suit of the plaintiff was dismissed on Apr. 8, 1975. She filed an appeal before the Additional District. Judge, Hissar against that decree During the pendency, of the appeal Shrimati Sukhi Devi died, Shrimati Champa Devi, and Shrimati Purni Devi who were the daughters of the deceased were brought on the record as her legal representatives. The Additional District Judge accepted the appeal and decreed the suit of the plaintiff-appellants. M/s. Ladu Ram Gheru Lal, Gheru Lal and Kishan Lal defendants came up in Second Appeal to this Court which was dismissed in limine on May, (26), 1979.
3. The decree-holders after the decision of the appeal started execution of the decree against the judgment debtors. The present petitioners namely Pawan Kumar, Pardeep Kumar and Miss Manjoo filed objections against the execution of the decree on the ground that their father Om Parkash had died during the pendency of the appeal and the petitioners had not been brought on the record. Consequently it was alleged that the decree was a nullity and could not be executed. It was further stated that they were minors and were in possession of the shop. The application was contested by the decree holders, who pleaded that the decree was not a nullity as it was the duty of the legal representatives of the deceased to have filed the application for impleading them as parties in place of their father, They further pleaded that a Second Appeal was filed in the High Court by some of the judgment debtors which was dismissed in limine and consequently no prejudice can be said to have been caused to them.
4. The learned Executing Court came to the conclusion that if the legal representatives of the deceased were not impleaded as parties in the appeal that would not make the decree a nullity. Consequently it rejected the objections of the applicants. They have come up in revision against that order.
5. It is contended by Mr. Premi, learned counsel for the petitioners that Om, Parkash judgment debtor had died during the pendency of the appeal and his legal representatives had not been brought on the record. It is further contended that the appellant-decree holders did not obtain order of the appellate Court to exempt them from the necessity of substituting the legal representatives of the deceased under sub-rule (4) of R. 4 of O. 22 Civil P. C. According to him, the appeal therefore, stood abated and the decree was a nullity.
6. I have heard the learned counsel for the parties at a considerable length. I, however, regret my inability to accept the contention of Mr. Premi. In order to decide the question it will be proper to make a reference to the relevant provisions of Order 22 of the Code of Civil Procedure. R. 2 of O. 22 deals with procedure where one of several plaintiffs or defendants dies and right to sue survives, Rule 3 with the procedure in case of death of one of the several. plaintiffs or of sole plaintiff and Rule 4 with the procedure in case of death of one of several defendants or of sole defendant This High Court added 2 Rules numbered as 2A and 2B which are as follows:--
'2A. Every Advocate appearing in a case who becomes aware of the death of a party to the litigation (whether he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.
2B. The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis.
Rule 4 is as follows:--
(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under subrule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks Fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who having filed it has failed to appear and contest the suit at the hearing and judgment may, in such case be pronounced against the said defendant notwithstanding the, death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5)x x x x x x x x x x'
Sub-rule (3) was also substituted by this Court and the same reads as follows:--
' 3 Where within the time limited b law no application is made under sub-rule (1) the suit shall not:abate as against the deceased defendant and judgment be pronounced notwithstanding the death w and shall have the same force and effect as (if) it had been pronounced before the S death took place.'
From a reading of Rr. 2A, 2B and subrule (3) of R. 4 of O. 22 it is clear that a duty has been cast on the legal representatives of a deceased defendant to get themselves impleaded as Parties and in case they fail to do so, the suit does not abate and a decree passed against a deceased defendant shall have the same force and effect as if it had been passed before hi4 death. The aforesaid Rules are equally applicable is case of appeals. In view of the said provisions it cannot be said that on account of the death of Om Parkash, the decree of the Appellate Court was a nullity and could not be executed. In view of the aforesaid Rules, sub-rule (4) is not applicable to the present case Mr. Premi made a reference to Ram Chandra Arya v. Man Singh, AIR 1968 SC 954 and Awadh Bihari Tewari v. Sudarshan Rai AIR 1965 Pat 427 (FB). Suffice it to say that the facts of those cases were entirely different Therefore, he cannot take any benefit from the aforesaid decisions.
7. It was then faintly argued by the learned counsel for the petitioners that in view of sub-rule (4), sub-rule (3) as substituted by this Court stood repealed as it was inconsistent with that sub-rule. This argument is also of no substance. This matter came up before a Full Bench of this Court in Smt. Chand Kaur v. Jang Singh 1978 Cur LJ (Civil) 543, of which I was a member. A similar contention was raised therein. The Full Bench observed as follows:--
'................ I am also not impressed with this contention. Sub-rule (4) provides that the court may exempt the plaintiff from necessity of substituting the legal representatives of any defendant who failed to file a written statement or who having filed it failed to appear and contest the suit at the hearing. Sub-rule (5) authorises a plaintiff to apply after the expiry of the period of limitation for setting aside the abatement on certain grounds and for admission of that application and Section 5 of the Act on the ground that he had by reason of such ignorance, sufficient cause for not making an application within period specified in the Act. The two provisions incorporated in the above sub-rules are limited in applicability whereas the powers of the Court under the provisions of substituted sub-rule (3) to Rule 4 are wider. In my opinion, the powers conferred by sub-rules (4) and (5) also do not come in conflict with substituted subrule (3). In the situation S. 57 of the Amendment AM will have no applicability.'
The above observations are fully applicable to the present case I am, therefore of the view that the sub-role (3) of R. 4 as substituted, in view of sub-rule (4) does not stand repealed.
8. For the reasons recorded above, the revision petition fails and the same is dismissed with costs. Counsel's fee Rs. 150/-.
9. Revision dismissed.