OM PRAKASH MARWAHA Vs. JAGDISH LAL MARWAHA

JUDGEMENT

(1.) Leave granted in both the Special Leave Petitions wherein the parties are the same and both arise out of orders passed by the Delhi High Court in RSA No.126 of 1989.

(2.) The appellants herein are the legal representatives of the original defendant, Nanak Chand in a suit brought against him by Jagdish Lal Marwaha, the predecessor-in- interest of the respondents, to makeover vacant and peaceful possession of quarter No. 37-38, Block No.C-I, Malkaganj, Delhi, and, thereafter, not to interfere with the plaintiff's possession therein. On the suit being dismissed, the plaintiff, Jagdish Lal Marwaha, filed a First Appeal in the Court of Additional District Judge. While the First Appeal was pending, Nanak Chand died on 3rd January, 1985, and apparently an application for substitution of his legal heirs was made in the pending appeal. The said application, however, remained pending and undisposed of, though the appeal was finally decided. Consequently, although, an application had been made for substitution, the heirs of deceased, Nanak Chand, were not brought on record in the first appeal and as a result when the decree was drawn up it was drawn up against Nanak Chand, who, as mentioned hereinabove had died during the pendency of the appeal.

(3.) Although, no formal order of substitution had been made, the legal representatives of Nanak Chand filed a second appeal before the High Court, which was ultimately dismissed on 12th December, 1991, with the judgment and decree of the First Appellate Court being affirmed. However, since the legal heirs of deceased Nanak Chand had not been brought on the records of the first appeal, a decree in terms of the judgment passed by the High Court in the Regular Second Appeal could not be drawn up and as a result, the decree passed by the First Appellate Court and affirmed by the High Court in second appeal could not be executed. An application, being CM 2873 of 1998, was thereupon filed by the legal heirs of the plaintiff decree-holder in the second appeal praying for rectification of the judgment and decree drawn up by the First Appellate Court or in the alternative to draw-up a fresh decree in the second appeal in terms of the order dated 12th December, 1991, dismissing the appeal.