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Azizur Rehman Vs. AminuddIn Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 171 of 1969
Judge
Reported in1975RLR199
ActsCode of Civil Procedure (CPC), 1908 - Sections 150; General Clauses Act - Sections 21
AppellantAzizur Rehman
RespondentAminuddIn Etc.
Advocates: Bawa S.C. Singh and; Ravindar Sethi, Advs
Excerpt:
the court adjudged that it could not be said that the court passing decree under the civil procedure code, 1908, had no power to interfere with it if it had been passed in ignorance of the fact that one of the parties to the appeal had died during pendency thereof - further, if it came to its knowledge in second appeal, the appellate court had inherent jurisdiction to reopen an appeal and determine effect of the death. - .....raised only before the additional district judge before whom the appeal was pending when ahsanul rehman died. the real remedy which appellant should have invoked would have been the filing of an appropriate application before 201 the additional district judge who made the decree urging that the decree made on 30th april, 1969, could not have been made inasmuch as the appeal had abated on account of the death of ahsanul rehman on the 11th of july. 1968. if such an application had been moved the additional district judge would have faced a situation where he had passed a decree without being informed of the death of ahsanul rehman a material party to the appeal. he was respondent no. 4 before the additional district judge. the decree lad been passed under the code of civil procedure.....
Judgment:

P.S. Safeer, J.

(1) This appeal was admitted to hearing on the 17th of October, 1969, and when the process was issued for being served on respondent No. 4 Ahsanul Rehman, according to the averments in Civil Miscellaneous 1279 of 1970, it came back unserved with the note that he had died. The said application was kent pending by me in terms of the order made on the llth of December, 1972. It is stated in paragraph 3 of the said application that Ahsanul Rehman had died on 11th of July, 1968 and his death was registered five days later in the Corporation on the 16th of July, 1968. The application states that in view of the death of Ahsanul Rehman before the passing of the decree by the court of first appeal the appeal before that court had abated. The application was filed in this court on the 31st of August, 1970.

(2) I have heard Bawa Shivcharan Singh in support of the appeal and at my instance he has taken me through the relevant portions of the amended plaint out of which the litigation arises. The averments contained in paragraph 2 of the plaint disclose that Ahsanul Rehman would have inherited a specified interest in the immovable property in dispute on the basis of the will executed in December, 1925. No adjudication could have been made by the court below without impleading the legal representatives of Ahsanul Rehman. Had it been brought to the notice of the court below Ahsanul Rehman had died on the llth of July, 1968, the impugned order dated the 30th of April, 1969, would not have been made.

(3) It was the duty of the parties appearing before the Additional District Judge to bring to his notice that one of the parties to the appeal, who had an alleged claim to a specified extent in the immovable property, had died during the pendency of the appeal.

(4) A very significant aspect, however, is that this appeal filed against several persons was also against Absanul Rehman who had died on the date when the appeal was filed in this court. Bawa Shivcharan Singh is unable to show any provision on the basis of which an appeal against a dead person could have been sustained before this court. He, however, urges that the appeal was filed against several persons out of whom Ahsanul Rehman was dead on account of the fact that his name remained in the decree drawn in consequence of the judgment made by the court of first appeal. Be that as it may, the question of abatement of the appeal could have been raised only before the Additional District Judge before whom the appeal was pending when Ahsanul Rehman died. The real remedy which appellant should have invoked would have been the filing of an appropriate application before 201 the Additional district Judge who made the decree urging that the decree made on 30th April, 1969, could not have been made inasmuch as the appeal had abated on account of the death of Ahsanul Rehman on the 11th of July. 1968. If such an application had been moved the Additional District Judge would have faced a situation where he had passed a decree without being informed of the death of Ahsanul Rehman a material party to the appeal. He was respondent No. 4 before the Additional District Judge. The decree lad been passed under the Code of Civil Procedure which is a Central Act. The adjudication contained in a judgment is followed by a decree. The decree is in the nature of an executable order. If sections 150, 151 and 153 in the Code of Civil Procedure are read with section 21 of the General Clauses Act, then it cannot be said that the court passing the decree under the Code of Civil Procedure has no power to interfere with it if it is brought to its notice that it had been passed in ignorance of the fact that one of the parties to the appeal had died during the pendency thereof. Section 152 in the Code of Civil Procedure gives a limited power to amend a decree. It says :- '152, Amendment of judgments, decrees or orders :- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.'

(5) If the court has the power postulated by section 152 it cannot be imagined that it has no inherent jurisdiction to reopen an appeal in which it may have passed a decree under Order 41 of the Code of Civil Procedure in oblivion of the fact that one of the parties before it was dead at the time of making the decree. I hold that in such a situation a court of appeal has the inherent power to interfere with its own decree and it can call upon the parties after reopening the appeal to address the court on the effect of the death of one of the parties to the appeal during the pendency thereof which the court was not aware at the time of the making of the decree. There is no prohibition in the Code of Civil Procedure which may debar the exercise of such a power. The Civil Court has the inherent power with it to correct such a significant mistake which may have led to the passing of a decree in an appeal where one of parties to the appeal was dead but the fact of the death of that party had not been brought to the notice of the court.

(6) After the death of Ahsanul Rehman in 1968 the court of first appeal continued to deal with the appeal and the orders-sheet shows that many orders were passed thereafter and it is lamentable that on all these dates nobody brought to the notice of the Additional District Judge that Ahsanul Rehman respondent No. 4 to the appeal had died on llth July, 1968. The present appeal before me was filed, as already observed, against several persons one of whom Ahsanul Rehman was dead, because of the error apparent on the face of the decree drawn on the basis of the judgment made by the Additional District Judge which decree contained the name of Ahsanul Rehman That however, does not make this appeal competent. The averments made in Civil Miscellaneous 1279 of 1970 affirm me in taking the view that the court of appeal should have been moved through an appropriate application and should have been called upon to deal afresh with the appeal which had been disposed of in complete ignorance of the fact that Ahsanul Rehman had died during the pendency thereof. While dismissing this appeal filed against Ahsanul Rehman, amongst others, who was dead at the time of filing of it liberty is hereby reserved to the appellants to move the District Judge through an appropriate application urging that the impugned decree be set aside and the appeal be disposed of by the court below after taking into consideration the fact that Ahsanul Rehman had died on the llth of July, 1968. I am making no observation as to whether the appeal had abated or not on account of the death of Ahsanul Rehman on the 1 Ith of July, 1968. That will be a matter which the court disposing of the first appeal will consider and will after hearing the parties determine whether Ahsanul Rehman was a necessary party to the first appeal or not.


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