HASMUKH KARSANDAS PARMAR Vs. BAHADURSINGH MADHURSINGH DODIA

JUDGEMENT

(1.) This Appeal under section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and order dated 9.4.1999 passed by the Appellate Bench of the Small Cause Court at Ahmedabad dismissing Civil Appeal No. 66 of 1999 and confirming the judgment and order dated 18.3.1999 passed by the learned Single Judge of the Small Cause Court below Applications at Exhs. 23 & 25 in Execution Application No. 177 of 1998.

(2.) The facts leading to filing of the present Appeal are as under: 2.1 Shri Bahadursing Madhusing Dodiya, the respondent herein, filed H.R.P. Suit No. 1305 of 1990 against the defendant - Karsandas Gordhandas Parmar under the provisions of the Bombay Rent Act, 1947 for a decree of eviction inter alia on the ground that the defendant tenant had acquired suitable alternative accommodation and that the plaintiff reasonably and bona fide required the suit premises for his own occupation as he was going to retire in the year 1994. Before the Trial Court, the plaintiff examined himself as a witness and also examined the Administrator of Subhlaxmi Housing Co-operative Society where the defendant-tenant's house was being constructed. On behalf of the defendant, his son Narendra Karsandas Parmar was examined as a witness at Exh. 44 stating that the house in Subhlaxmi Housing Co-operative Society was constructed by his father but the construction was not completed. After hearing Shri G.M. Pandya, learned Advocate for the original plaintiff and Shri J.R. Jani and Shri D.K. Vyas, learned Advocates for the defendant, the Trial Court delivered judgment and decree dated 11.12.1995 decreeing the plaintiff's suit and directing the defendant to hand over vacant and peaceful possession of the suit premises to the plaintiff on the ground that the defendant had acquired suitable alternative accommodation and also on the ground that the plaintiff reasonably and bona fide required the suit premises for his own occupation. The standard rent of the suit premises was also fixed at Rs. 200 per month (inclusive of taxes) which was also the contractual rent. 2.2 Civil Appeal No. 20 of 1996 came to be filed by the two Sons (including the present Appellant) and two Daughters of Karsandas Gordhandas Parmar (original defendant) as his heirs and legal representatives. In the said Appeal, the appellant i.e. the sons and the daughters of Karsandas Gordhandas Parmar, filed the Application for permission to prosecute the appeal as original defendant Karsandas Gordhandas Parmar had left the house in 1994. Permission was granted. The Appeal was heard on merits. The Appellate Court reversed the finding that the defendant had acquired suitable alternative accommodation, since even according to the Administrator of Subhlaxmi Housing Cooperative Society, the construction of the house of the defendant was not completed as the construction was done only upto lintel level. However, the Appellate Court confirmed the finding of the trial Court that the suit premises was reasonably and bona fide required by the plaintiff and that greater hardship would be caused to the plaintiff - landlord if decree of eviction was not passed. The Appellate Bench of the Small Cause Court dismissed the Appeal on 15.9.1998 and give time to the Appellants to vacate the suit premises by 31.10.1998. 2.3 Aggrieved by the above judgment and decree, the sons (including the present Appellant) and the daughters of Karsandas Gordhandas Parmar (original defendant) filed Civil Revision Application No. 1545 of 1998. In the said revision application, the judgments of the courts below were assailed on merits, particularly the finding that the suit premises was reasonably and bona fide required by the plaintiff landlord and the farther finding that greater hardship would be caused to the landlord if the decree of eviction was not passed. After hearing the learned Counsel for the parties, this Court (Coram : Mr. Justice D.C. Srivastava) dismissed the revision application on merits on 19.2.1999. 2.4 The present Appeal arises from the order passed by the Executing Court rejecting the obstruction application filed by Hasmukh Karsandas Parmar, who was Appellant No. 1/1 in Civil Appeal No. 20 of 1996 and petitioner No. 1/1 in Civil Revision Application No. 1545 of 1998. The obstruction application (Ex. 23) was filed on the ground that the decree passed by the Trial Court was a nullity. It was stated by the present appellant that the original defendant - Karsandas Gordhandas Parmar i.e. the father of the appellant, because of his unsound mind, left the house on 26.11.1994 without the knowledge of the members of the family. On the very next day i.e. 27.11.1994, the Police was informed but he had not returned till the date of filing the obstruction application at Ex. 23 on 11.3.1999. It was alleged that, since the original defendant was of unsound mind, it was necessary to appoint a guardian before proceeding with the suit and that since the suit was decreed without any such appointment of guardian, the decree was a nullity. It was further contended that the defendant had disappeared and therefore for all practical purposes the plaintiff-landlord had obtained a decree against a dead person and as such the decree was a nullity and, therefore, this obstruction application (Ex. 23) was filed by one of the sons of the original defendant Karsandas Gordhands Parmar under Order 21 Rule 97 of the Code of Civil Procedure. Application at Ex. 25 was.given by the landlord-decree holder to remove the obstruction. 2.5 The Executing Court rejected obstruction application at Ex. 23 by its judgment and order dated 18.3.1999 observing that in view of the decision of this Court in Chandravati Society vs. Bhairavnath Society Trust reported in 1993 (1) GLR at page 116, there is no necessity to observe the procedure laid down under Order 21 Rule 97 and other provisions to remove the objection, if the objector is a judgment-debtor himself. 2.6 Aggrieved by the above judgment and order, the defendant carried the mater in appeal before the Appellate Bench of the Small Cause Court by filing Civil Appeal No. 66 of 1999 which has been dismissed by the judgment and order dated 9.4.1999. It is against this judgment and order that the present Second Appeal has been filed.

(3.) The learned Counsel for the Appellant Mr. S.M. Shah submitted that, since the judgment creditor-plaintiff himself had stated in the Execution Application (Page 32 of the paper-book) that original defendant-Karsandas Gordhandas Parmar had expired during pendency of the suit and his heirs were joined as defendants or judgment-debtors and since the original decree dated 11.12.1995 was passed against Karsandas Gordhandas Parmar (the heirs were admittedly not brought on record during pendency of the suit), therefore, in view of the settled legal position that decree passed against a dead person is a nullity and cannot be executed, the obstruction application filed by the Appellant was required to be allowed. It was further submitted that, at the highest, the Executing Court could have passed an order for recalling the decree passed against the dead person and continued with the suit from the stage of giving the original plaintiff an opportunity to bring the heirs of the original defendant on record, but the Executing Court could not have dismissed the obstruction application and ordered for proceeding further with the execution of the decree which has already reached the stage of issuing warrant for possession.