Smt. Shantiben Babarbhai Patel and Anr v. Smt. Geeta Prabhu Patel and Ors

4. Mata Prasad Mathur v/s. Jwala Prasad Mathur and Ors. (Civil Appeal No. 1457 of 2013)

11. Per contra, the learned counsel for the Respondents in Writ Petition No. 1958/2017 have made following submissions. On the date of the decree, the sole defendant Raviyabhai had already expired and period of limitation contemplated for abatement of suit had already expired. Deceased Raviyabhai expired on 01.02.2008 and the ex-parte decree against such a dead person, is passed on 22.04.2009. The Petitioners being sisters of sole defendant Raviyabhai were fully aware of the death of sole defendant as they had attended his funeral rites. The Petitioners were not strangers to sole defendant but were real sisters. Therefore, on the date of ex-parte decree, the learned Trial Judge had no jurisdiction to pass the decree as suit already stood abated by operation of law. The Executing Court under Section 47 of CPC can go into all questions arising between the parties of the suit or their representatives relating to execution, discharge or sanctification of the decree and Section 47 specifically bars a separate suit for that. Therefore, the Executing Court was well within its limits to pass the impugned order. The consideration during application under Order IX Rule 13 for setting aside ex-parte decree is necessarily about sufficient cause and the consideration of the Executing Court while passing impugned order was totally distinct being whether decree against a dead person can be executed. For all these reasons, the decree under execution passed against the dead person is nullity and hence inexecutable. Learned counsel for the Respondents has relied upon following Judgments in support of his contention:

1. Rajendra Prasad and Anr. v/s Khirodahr Mahto and Ors.

2. Trikamlal Manilal Patel v/s. Uttar Gujarat Vij Comp Ltd. (2006 2 GLH 519)

REASONS AND CONCLUSIONS

12. This is indeed a vexed question. What falls for consideration is ‘whether an Executing Court is empowered to refuse/stay execution of a decree, which is ex-facie passed against a dead person, in an abated suit?’

13. The operative part of the impugned order reads thus: “1. Application is hereby allowed.

2. The decree as obtained in R.C.S. No. 52/2005 dated 22.04.2009, is obtained against the dead person is stayed.

3. Parties to bear their own cost.” (Emphasis supplied)

14. It is therefore clear that Executing Court has allowed the application. It is necessary to note the prayers made in the application, which read thus: “ 20) Hence the applicant request-

15. Conjoint reading of the main prayer in the application and clause (1) of the operative part of the impugned order shows that the Executing Court has declared that the decree in Regular Civil Suit NO. 52 of 2005 is not executable and therefore, execution proceedings have been stopped. This is further clear from clause (2) of the operative order in which it is held that the decree under execution is obtained against dead person and is therefore, stayed. There is no manner of doubt that the Civil Misc. Application No. 3 of 2013 filed by the Respondent Nos. 1 and 2 under Section 47 of the CPC, is disposed of as allowed.

16. Having concluded as above, it is necessary to examine whether the Executing Court was justified in going into aspect of the decree being executable or not, in the facts of this case.

17. The dates and events as narrated above are really undisputed. As a matter of fact, Raviyabhai (sole defendant) expired on 01.02.2008 and the decree is passed on 22.04.2009. Since, the period of limitation for setting aside abatement and bringing legal heirs on record, had expired, the said suit stood abated sometime in May 2008 itself. It is nobody’s case that the Petitioners/Decree holders ever filed any application for bringing legal heirs of deceased Raviyabhai on record. Once this is the undisputed factual position, in law, the date on which the decree is passed, the suit had abated. An abated suit cannot be decreed. This is irrespective of the argument of the legal heirs of the deceased Raviyabhai that the Petitioners/decree holders being his real sisters, obviously knew about his death and still chose not to file an application for bringing his legal heirs on record. Even if, this Court does not enter into this controversy at all, for whatever reason that the Petitioners did not file the application for bringing legal heirs, fact remains that the suit was abated by operation of law, on the date of the decree, under mandatory provisions of Order XXII, Rule 4, sub-rule (3) of the CPC, which reads thus: “Where within the time limited by law, no application is made under sub-rule (1), the suit shall abate as against the deceased defendant” It is another aspect that this fact was not brought to the notice of the learned Judge who passed the decree. That by itself will not change the factual position that on the date of decree, the suit was no more and stood abated by the operation of law.

18. Now let us consider the argument of the Petitioners that once the finding about sufficient cause to remain absent in the suit is already concluded on due consideration of application under Order IX Rule 13 of the CPC, the same cannot be gone into or considered by the Executing Court. Indeed, this aspect as to satisfying the Court that defendant was prevented by sufficient cause from appearing in the suit (as contemplated under Order IX Rule 13 of the CPC) cannot be gone into by the Executing Court, because that is within the jurisdiction of the Court that passed the ex-parte decree on merits (Trial Court). However, that does not take away the jurisdiction of the Executing Court under Section 47 of the CPC to take cognizance of undisputed fact that on the date of the decree, the suit was no more as it stood abated by operation of law.

19. The learned Single Judge of the Gujarat High Court had an occasion of considering this identical fact situation in the matter of Trikamlal Manilal Patel v/s Uttar Gujrat Vij Company Limited (supra), which is relied upon by the Respondents. In that case, the Executing Court had refused to take cognizance of the fact that the suit is abated for not bringing legal heirs on record on the ground that Executing Court cannot go behind the decree. The learned Single Judge considered this aspect and has taken a categorical view that when the decree is nullity and if it is brought to the notice of Executing Court, such fact cannot simply be brushed aside on the ground that Executing Court cannot travel behind the decree. The learned Single Judge after holding as aforesaid had set aside the order of the Executing Court and remanded the matter to examine whether the execution proceedings are maintainable or not. Paragraph 9 of the said Judgment can be usefully referred to, which reads thus: “(9) When a decree is a nullity and if the same is brought to the notice of the Court, the executing court cannot simply brush aside the same on the ground that it cannot travel behind the decree. There is no question of going behind the decree in examining whether the decree is against a dead person or not, and if the defendant died during the pendency of the suit, whether his heirs were brought on record. It is not a case where the original defendant died after the hearing of the suit was concluded. In the aforesaid order of the learned Single Judge, it is also observed that there is prima facie evidence on record to suggest that on the first returnable date, the defendant expired. There is nothing on the record to show that the plaintiff had taken any steps to bring heirs of the defendant on record. In fact, the suit could be said to have been abated as the suit cannot be proceeded against a dead person. Therefore, the proceedings in the said suit cannot be said to be a valid proceedings. The learned Judge has committed an apparent error in coming to the conclusion that the executing court cannot go behind the decree. In the present case, there is no such case as the judgment and decree itself is a nullity. The Trial Court ought to have at least appreciated that if in the title the name of the original defendant is mentioned, and the names of the heirs are not mentioned, the execution proceedings cannot go against a person who is not named in the judgment or who is not brought on record of the case. The only question raised in the application filed by the present applicant was whether the decree is a nullity and the said question was required to be decided by the court and deciding such a question cannot be said to be going behind the decree.” [Emphasis supplied]

20. Present case is identical. I hasten to add that, this case also is not a case where the defendant has expired after the hearing of the suit was concluded. This is a case, where defendant had expired long ago and no application for bringing his legal heirs on record was made and ex-parte decree was secured by the Petitioners/Decree holders without disclosing death of their real brother/sole defendant. In light thereof, I am of the considered view that even if the aspect of whether sole defendant was prevented by sufficient cause from appearing in the suit, has already been concluded between the parties, the Executing Court was justified in taking cognizance of the undisputed fact that on the date of the decree, the sole defendant had expired and the suit was abated and it is a decree against dead person. No fault can be found with the view taken in the impugned Order. During the hearing of application under Order IX Rule 13, by the Trial Court and the Appellate Court both, the fact of death of deceased Raviyabhai on 01.02.2008 was very much on record and the Petitioners had an opportunity of correcting the course of action by filing application for bringing his legal heirs on record. However, the same has not been done. It is not for this Court to comment upon whether the order passed under Order IX Rule 13, which is confirmed in appeal is right or wrong, because the same has attained finality. The same is also not the subject matter of this petition. But scope of that application (u/O. IX, Rule 13 of the CPC) and scope of the present application (u/s. 47 of the CPC) are totally distinct.

21. Before parting, it is necessary to deal with the case laws relied upon by the Petitioners in support of their case. So far as the Judgment of Bhargirath Mal v/s. Bhagwan Dutt (supra) and Mata Prasad Mathur v/s. Jwala Prasad Mathur and Ors. (supra) are concerned, both the said judgments are clearly distinguishable on facts, inasmuch as in both these judgments, what was under consideration, was the exercise of jurisdiction under Order XXII Rule 4 of the CPC. In the facts of Bhargirath Mal v/s. Bhagwan Dutt (supra), the learned Judge of the Rajasthan High Court had found that the decree could not have been held as nullity and in the case of Mata Prasad Mathur v/s. Jwala Prasad Mathur and Ors. (supra), the Hon’ble Supreme Court had found that the Court ought to have exercised the power to avoid abatement. In both these cases, the power of the Executing Court u/s. 47 of the CPC was not under consideration. In the case at hand, the power of Executing Court u/s. 47 of the CPC is specifically under consideration and therefore, the present case is clearly distinguishable. In that view of the matter, the said two judgments do not advance the case of the Petitioners.

22. In the case of Rahima Khatun v/s. Samser Ali (supra) although the power of Executing Court u/s. 47 of the CPC was under consideration, during hearing of Revision Application, the Court was not informed about the death of the sole Respondent/Samser Ali and it was held that such death will not make the judgment invalid as it was passed in Revision, because the High Court could even suo moto call for record and proceedings and dispose it of on examining whether the order of the subordinate Court suffered from any infirmity or not. Therefore, it was held that validity of the Judgment passed in Revisional Jurisdiction cannot be challenged in Executing Court. In these peculiar facts, it was found by the learned Single Judge of the Gauhati High Court that the decree cannot be held as nullity or not executable for that reason. In the present case, the decree which is put to execution, was passed by the Court of the first instance namely the Trial Court and death has not taken place during the pendency of the revision or any higher Appellate forum. In the present case, admittedly the decree was passed after a long time from the death of sole defendant, when undisputedly the suit was abated by the operation of law and the Plaintiffs/Petitioners have not taken any steps to bring legal heirs of sole defendant Raviyabhai on record. In that view of the matter, the present case is clearly distinguishable. Therefore the judgment of Rahima Khatun (supra) also does not advance the case of the Petitioners.

23. The last Judgment relied upon by the Petitioners is in the matter of Pradeep Mehra v/s. Harijivan Jethwa (supra). In this Judgment the Hon’ble Supreme Court has reiterated key features of the exercise of power permissible u/s. 47 of the CPC, relying on the earlier Judgment of the Hon’ble Supreme Court in the case of Dhurandhar Prasad Singh vs Jai Prakash University And Ors - (2001) 6 SCC 534. The key features noted by the Hon’ble Supreme Court are that exercise of power u/s. 47 of the CPC lies in very narrow inspection-hole and Executing Court can allow objection under Section 47 of the CPC to the executability of the decree if it is found that the same is void ab initio and nullity and also on the ground that the decree is not capable of execution under law either because the same is passed in ignorance of such a provision of law or that law was promulgated making a decree inexecutable after its passing.

24. In view of these key features explained by the Hon’ble Supreme Court, the facts of the present case clearly pass the test and this Judgment in fact helps Respondents, in the considered view of this Court. The date of death of the sole defendant Raviyabhai and the date of decree as obtained by the Petitioners/Decree holders/Plaintiffs are undisputed. It is also undisputed that no application for bringing legal heirs of sole defendant Raviyabhai was ever filed. In such undisputed factual situation, the decree as passed by the Trial Court is passed in an abated suit and therefore, has to be treated as nullity. Having held so, it is difficult to find fault with the impugned order, which has in terms held that the decree is not executable as it is obtained against the dead person.

25. Perusal of the impugned order shows that the Executing Court has considered the aforesaid undisputed facts. In addition, the Executing Court has also considered that the fact of death was mandatorily required to be informed by the Plaintiffs/Petitioners to the Court and for want of such intimation in spite of knowledge, the decree as obtained by the Plaintiffs/ Petitioners will have to be treated as nullity. Therefore, the impugned order cannot be said to be perverse, being based on material available on record. The view taken is probable. There is no error apparent on the face of the record.

26. In the net result, Writ Petition No. 1958 of 2017 is devoid of merits and is accordingly dismissed. Rule is discharged.

27. As a necessary corollary, the companion Writ Petition being Writ Petition No. 13349 of 2022 filed by the daughter of deceased Raviyabhai, succeeds and the impugned order dated 20.06.2022 passed by the Administrator, Union Territory of Dadra and Nagar Haveli, Diu and Daman in Appeal No. 4 of 2022 and the order dated 30.09.2021 passed in Appeal No. 1 of 2019 by Resident Deputy Collector (S) Dadra and Nagar Haveli, Silvassa and the Order dated 11.12.2012 passed by Mamlatdar, Dadra and Nagar Haveli, Silvassa, all are quashed and set aside. The Mamlatdar, Dadra and Nagar Haveli, Silvassa is directed to pass fresh order on application No. 9424, which stands restored, after hearing both sides, in accordance with law, considering both the facts that the decree is not set aside but found to be in-executable. Rule is made absolute accordingly.

28. In view of disposal of writ petitions, all the pending Interim Applications are also disposed of. No costs. (M.M. SATHAYE, J.)