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Sub-divisional Officer and anr. Vs. Madanlal Son of Shri Nathilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Miscellaneous Application No. 209 of 1982
Judge
Reported in1983WLN602
AppellantSub-divisional Officer and anr.
RespondentMadanlal Son of Shri Nathilal
Cases ReferredJai Berham v. Kedar Nath A.I.R.
Excerpt:
.....accepted with costs -..........the appeal, madanlal - the sole respondent expired on 9-4-977. no efforts were made to bring his legal representatives on record. when the case came up fir hearing. no body appeared for the respondent and the appeal was heard ex-parte and allowed. therefore, the recovery was also made from the legal representatives. the legal representative have jed the present application submitting that the judgment of this court dated 8-12-1971, whereby the appeal was allowed and the judgments of the two courts below were set aside, was a nullity. the appeal stood abated. therefore, the orders of the two courts below have become final and no recovery could have been made in pursuance of an illegal certificate which had been quashed by a competent court of law. reliance has been placed on 1975.....
Judgment:

S.N. Bhargava, J.

1. The respondent has filed a suit against the appellant for declaring that the requisition and the certificate for the recovery of a sum of Rs. 1,822.44, issued by the appellant under the Public Demand Recovery Act are invalid and liable to be cancelled. The trial Court decreed the suit for its order dated 24 4-196(sic). The appeal filed by the appellants was also dismissed vide order dated 15-9-1977. A second appeal No. 404/1971 came to be filed and was pending. During the pendency of the appeal, Madanlal - the sole respondent expired on 9-4-977. No efforts were made to bring his legal representatives on record. When the case came up fir hearing. No body appeared for the respondent and the appeal was heard ex-parte and allowed. Therefore, the recovery was also made from the legal representatives. The legal representative have Jed the present application submitting that the judgment of this Court dated 8-12-1971, whereby the appeal was allowed and the judgments of the two courts below were set aside, was a nullity. The appeal stood abated. Therefore, the orders of the two Courts below have become final and no recovery could have been made in pursuance of an illegal certificate which had been quashed by a competent court of law. Reliance has been placed on 1975 Rajdhaai LR 199 (Delhi) and 1973 Pun 45, which have been digested at page 496 of the Quinquennial Digest 1971-75, Vol. I of AIR, wherein it has been held that under the inherent powers a decree passed by the appellate Court in ignorance of the death of the respondent pending appeal, the decree can be re-opened and set aside in exercise of inherent powers. He has further submitted that it would be an abuse of the process of the Court to allow a decree, which is a nullity, to stand Therefore, inherent powers should be exercised to set aside such decree He has relied on Surji v. Manki Ram A.I.R. 1951 All. 31. He has also placed reliance on Rameshwar Lal v. Subdi A.I.R. 1938 Pat. 468, wherein it has been observed that the Courts must use their inherent powers to restitute to innocent persons their properties of which they have been deprived by erroneous orders of the Courts. He has submitted that there is no restrictions or fetters in exercising inherent powers under Section 151, CPC. They ought to be used to do substantial justice between the parties and to avoid the effect of abuse of process of the Court. Reliance has also been placed on Jai Berham v. Kedar Nath A.I.R. 1928 P.C. 269, wherein it has been held that:

It is the duty of the Court under Section 144 of the Civil Procedure Code to 'place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reserved.'

Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.

2. The inherent powers have been conferred upon the Court which is a power inherent in the Court to do justice between the parties before it. The Court should not shirk in using its inherent powers to advance substantial justice and should interfere inspite of procedural fetters to achieve the desired primary object for which the courts cuist, namely to do justice between the parties. In the facts and circumstances, of the case, I do not think it necessary to cite any authority for the proposition that the abatement takes place of its own by passage to time. Since no steps were taken to bring the legal representatives of Madan Lal on record, consequently the appeal had abated and the decree of the two Courts had become final, and the decree passed by this Court after the death of the sole respondent was a nullity, merely a scrape of paper. The learned Counsel for the petition filed a death certificate issued under the Birth and Death Registration Act, 1969 and the appellants have not controverted this fact that Madan Lal has died before the passing of the decree by this Court. A reply has also been filed and they have also admitted in the reply that the amount has been recovered from the legal representatives of Madan Lal after the passing of the decree in the second appeal. Therefore, I have no hesitation in holding that the decree of this Court dated 8.12.1981 was a nullity, and therefore, the judgment of this Court dated 8.12.1981 is recalled and since no steps have been taken by the appellant to bring the legal representatives of the deceased on record till today, I hold that S.B. Civil Second Appeal No. 404/1971 stood abated As such, the judgment of the two Courts below holding that the certificate issued under the Public Demand Recovery Act is invalid and inoperative and had become final, and this Court cannot shut its eyes and leave the respondent to agitate the matter elsewhere. I think it my duty to order that the amount recovered from Madan's legal heirs should be restored to them along with interest at the rate of 6%.

3. In this view of the matter, the petition filed by the legal representatives of Madan Lal is accepted with costs.


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