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Himangshu Bhusan Kar and ors. Vs. Manindra Mohan Saha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 68 of 1952
Judge
Reported inAIR1954Cal205,58CWN221
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 14(4) and 14(5); ;Code of Civil Procedure (CPC) , 1908 - Section 52 - Order 1, Rule 10 - Order 22, Rules 2 , 3 and 4 - Order 41, Rule 4
AppellantHimangshu Bhusan Kar and ors.;manindra Mohan Saha
RespondentManindra Mohan Saha;himangshu Bhusan Kar and ors.
Advocates:Radhikalar Tarafdar and ;Manohar Saha, Advs.
DispositionAppeal dismissed
Cases ReferredBasist Narayan Singh v. Mod
Excerpt:
- .....of the ejectment suit one of the plaintiffs jatindra mohan died on the 22nd november 1950, but the suit was decreed on the 16th june 1951 without any substitution in place of jatindra and without any step having been taken in that behalf or in consequence of the said death. it is, accordingly, contended that the suit abated and, therefore, the decree passed was without jurisdiction and was a nullity. the learned small cause court judge before whom the decree was being executed overruled this objection upon the view that the executing court was not entitled to go behind the decree as, in his opinion, the defect alleged was not one of jurisdiction. he further found that the surviving plaintiff on the record who was executing the decree before him was the sole heir and legal representative.....
Judgment:

P.N. Mookerjee, J.

1. This appeal arises out of a proceeding in execution. The present appellants who were the defendants in the original suit were the tenants under the plaintiff respondent Manindra Mohan Saha and his brother Jatindra Mohan Sana. These two brothers instituted a suit for ejectment against the defendants appellants and obtained a decree. That decree was put into execution and in the executing court an objection was filed by the judgment debtors under section 47 of the Code of Civil Procedure. The objection which is material for our present purpose arises on the following allegations, viz., that during the pendency of the ejectment suit one of the plaintiffs Jatindra Mohan died on the 22nd November 1950, but the suit was decreed on the 16th June 1951 without any substitution in place of Jatindra and without any step having been taken in that behalf or in consequence of the said death. It is, accordingly, contended that the suit abated and, therefore, the decree passed was without jurisdiction and was a nullity.

The learned Small Cause Court Judge before whom the decree was being executed overruled this objection upon the view that the executing court was not entitled to go behind the decree as, in his opinion, the defect alleged was not one of jurisdiction. He further found that the surviving plaintiff on the record who was executing the decree before him was the sole heir and legal representative of the deceased plaintiff.

2. Prom the decision of the learned subordinate Judge, as appeal was taken to the Special Bench of the court of Small Causes. That appeal, however, was dismissed for default as the judgment-debtor appellants failed to comply with an order passed by the Special Bench under section 14(5) of the Rent Control Act of 1950. The tenants judgment-debtors have now come up in second appeal to this Court.

3. In support of the appeal, three points have been urged by the learned Advocate appearing for the appellants. His first contention is that the Special Bench was wrong in applying section 14(5) of the Rent Control Act to the present case. In the second place, he contended that on account of the death of Jatindra during the pendency of the ejectment suit there was an abatement so far as he was concerned as there was no substitution in his place within the time allowed by law and that partial abatement entailed a total abatement of the suit having regard to its nature, viz., that it was an ejectment suit and the fact that the shares 'of the plaintiffs could not be ascertained on the materials on record. In the third place, the learned Advocate contends that even if the case comes under Order 22, Rule 2 of the Code of Civil Procedure, a note would be necessary regarding the fact of death and the other fact, viz., that the heir of the deceased is already on the record and as there was no such note in the present case, the decree passed was without jurisdiction, He, accordingly, contends that the executing court ought to have refused execution of the ejectment decree.

4. On the first question it seems to me, as at present advised, that the contention of the learned Advocate is right. It does not appear that section 14(4) or section 14(5) of the Rent Control Act of 1950 was intended to apply to execution proceedings. That, however, will not be of any advantage to the appellants in the present case as, in my opinion, the other two points, urged in support of the appeal, havo no substance and, accordingly, the order of the learned Small Cause Court Judge overruling the appellants' objection on the materials before him was right.

5. On the second question the position appears to be on the materials on record that the other plaintiff who is the respondent in this appeal was the sole legal representative of the deceased plaintiff Jatindra. That was clearly found by the executing court and I have no manner of doubt that, on the present state of the records, that finding is a good finding. On that finding it is quite clear that the present case would come under order 22, rule 2 of the Code. The relevant part of that provision provides that

'where there are more plaintiffs than one' and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone, the court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs.'

The language clearly contemplates a case where the right to sue or the cause of action does not die with the deceased plaintiff but survives his death & it survives, -- that is, passes on such death which it outlines, -- to the remaining plaintiff or plaintiffs alone.

That language is amply satisfied where the right to sue of the deceased plaintiff passes to the surviving plaintiff or plaintiffs alone; in other words where the entire right to sue (including that of the deceased plaintiff) vests in the surviving plaintiff or plaintiffs alone, whether by inheritance or succession or survivorship. The Rule! is sufficiently wide to cover cases of succession) and inheritance. It is not strictly confined only to cases where the remaining plaintiffs become entitled to the deceased plaintiff's interest by survivorship. The word 'survive' has not been used in the Rule in that technical sense. Vide -- 'M. A. Davar v. Ahmad Ali Khan', : AIR1952Cal219 (A) and -- 'Naranlal Jethalal v. Shivprasad Achratlal', AIR 1940 Bom 259 (B), overruling --'Khodadad Mundegar v. Bai Jerbai : AIR1938Bom6 ; Vide also -- 'Bhudeb Chandra v. Bhikshakar Pattanaik', AIR 1942 Pat 120 (D) and -- 'Sankru Mahto v. Bhoju Mahto', AIR 1936 Pat 543 (E), dissenting from -- 'Mt. Waleyatun-nissa Begum v. Chalakhi AIR 1931 Pat 164 (F) and explaining -- 'Basist Narayan Singh v. Mod-nath Das', AIR 1928 Pat 250 (G).

6. It is also clear that if a case comes under Rule 2 of Order 22, there is no scope for the application of Rule 3 of that Order which con-templates cases other than those covered by the preceding Rule and, accordingly, there is no question of abatement when the case falls within the terms of Rule 2 of Order 22. In the present case, as I have already said, upon the evidence it has been clearly established that the other or the surviving plaintiff was the sole legal representative of the deceased plaintiff. The case, therefore, clearly comes under the provision of Rule 2 of Order 22, and hence there is no Question of abatement of the suit on account of the death of the plaintiff Jatindra. The learned Advocate's contention to the contrary must, accordingly, fail and it is overruled.

7. It is true that there was no note made as contemplated by Rule 2 of Order 22 as the fact of death was not brought to the notice of the court when it passed the decree. That, however, is a mere irregularity and cannot have the effect of making the decree as one without jurisdiction. It is also well settled that, generally speaking, a decree passed in favour of a dead person is not a nullity although a decree made against a dead person is a nullity; and nothing has transpired in this case which would take it out of this general rule.

8. In the above view of the matter, I hold that the ejectment decree passed against the appellant was not without jurisdiction and was not a nullity and the executing court was, therefore, bound to execute the decree to give appropriate relief to the decree-holder.

9. I may also note that even if the case came under Rule 3 of Order 22 and there was in law an abatement of the suit, that also would not make the decree eventually passed in the suit as one without jurisdiction and in that case also the executing court will not be entitled to refuse to execute it on that ground. It would no doubt be open to the defendants in such a case to challenge the decree in appeal or in a proper case in revision or to have it set aside in the suit itself by appropriate proceedings but so long as the decree stands the executing Court is bound to execute it according to its terms.

10. For the above reasons, I hold that the decision of the learned Small Cause Court Judge overruling the judgment-debtors' objection to the execution of the decree was right and it must be upheld.

11. I, accordingly, dismiss this appeal but, in the circumstances of this case, I would make no order as to costs.


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