SATGURU SHARAN SHRIVASTAVA Vs. DWARKA PRASAD MATHUR [DEAD]

JUDGEMENT

(1.) Mr. Sushil Kr. Jain, Advocate takes notice for respondents.

(2.) This special leave petition arises from the judgment and order of the High Court of Madhya Pradesh, Gwalior Bench made on May 15, 1996, in First Appeal No. 17/89. The admitted position is that one Dwaraka Prasad Mathur was a member of the Secretarial Staff Housing Co-operative Society. Plot No. 14-C was allotted to him as a member and thereon he had constructed a house. It is the case of the petitioner that he had entered into an oral agreement of sale with him to purchase the house for a consideration of Rs. 20000/- subject to his obtaining permission for transfer from the Society as per the law. It is his case that he paid up the amount due from Dwaraka Prasad Mathur to the Society and became member of the Society as per the resolution passed by the Society. But before he got the possession, surprise pruned upon him in the form of a decree of specific performance obtained by the second respondent Narvedeshwar Prasad Saxena in O. S. No. 77-A of 1976, dated October 11, 1976. So he filed civil suit No. 121-A of 1984, on the plea that both the respondents had played fraud upon him and it was a collusive decree and sought to avoid the decree passed in Suit No. 77-A of 1976, (suit No. 121-A of 1984, of the petitioner). Admittedly pending suit both the defendants died. As far as the first defendant is concerned, his widow Shakuntala was brought on record as his legal representative. As regards the second defendant, Prakash Chand Saxena, his son was brought on record as legal representative. He is the decree-holder in the above suit No. 77-A of 1976, and the judgment-debtor is the first defendant. As far as the first defendant is concerned since Shakuntala also died pending suit, the decree as against the judgment-debtor in that suit No. 77-A/76 has become final and no legal representative of her came on record and the suit No. 121-A/84, got abated.

(3.) The question that arises is whether the appeal could be filed against dead person, namely, the first respondent When it was brought to the notice of the learned counsel, an application came to be filed to delete the name of the first defendant. It was accordingly deleted. The consequence is that as regards the first defendant/judgment-debtor in the above suit No. 77-A/76 the decree has become final. Equally decree of dismissal in suit No. 121-A of 1984 also becomes final.