DEEP J OBEROI Vs. INDIAN BANK

JUDGEMENT

(1.) THIS writ petition takes exception to the order passed by the 2nd Joint Civil Judge, J. D. , Pune dated 17-8-1992 below Exhibit 13 in Regular Darkhast No. 72 of 1991.

(2.) BY the said application below Exhibit 13 the petitioner prayed for a direction that the decree holder be directed to deposit a sum of Rs. 22,745. 25 in the Court and that the amount so deposited be made over to the judgment debtor/petitioners. The basis on which the said application was filed is that the original suit bearing Regular Civil Suit No. 1092 of 1978, as filed by the Decree Holder/respondent No. 1, against the defendant No. 2 i. e. late J. S. Oberoi, was a nullity being filed against a dead person. It is not in dispute that the said J. S. Oberoi died before the institution of the said suit. Therefore, according to the petitioners, decree passed by the Court in such suit was a nullity, for which reason it was inexecutable in law. According to the petitioners beside that the original defendant No. 1 M/s. New Industrial Suppliers was a proprietary concern of the original defendant No. 2 deceased J. S. Oberoi. The other ground which was pressed into service for the relief prayed below Exhibit 13 was that the petitioners, who were legal heirs of the late J. S. Oberoi, original defendant No. 2, have not inherited any movable or immovable property of deceased J. S. Oberoi; and therefore the decree in question cannot be executed against them. In the said application it was also emphasised that the bank officials committed fraud upon the petitioners by asking them to deposit Rs. 22,749. 25 ps. towards the final settlement of the outstanding dues and that the petitioners deposited the amount without prejudice to their rights and contentions of taking appropriate action against the bank officials at the appropriate stage and time. On these submissions the petitioners proceeded before the lower Court and prayed for relief below Exhibit 13. The Civil Judge, S. D. , Pune, while considering the said application below Exhibit 13, has observed that undisputedly the suit was instituted against the firm and in view of Order 30, Rule 10 of the C. P. C. a person carrying on business in the name or style, other than his own name, may be sued in such name or style, as if it were a firms name. The Court observed that having regard to the facts of the case it cannot be said that the suit was instituted against the dead person, for the legal representatives of deceased were brought on record with the permission of the Court. On the basis of the said reasoning the Court below rejected the application below Exhibit 13.

(3.) THE learned Counsel for the petitioners strenuously contended that the Court below committed serious error in rejecting the application particularly having found that the order of bringing the petitioners on record as legal heirs of J. S. Oberoi was not in conformity with the legal position. According to him, having recorded this finding, it was not open to the Court, to refuse the relief prayed for inasmuch as the sequel of the said finding is that the order passed by the trial Court permitting impleadment of the petitioners is vitiated; and since the said order cannot be sustained in law, the suit could not have proceeded against deceased J. S. Oberoi. According to him, therefore, the decree passed against the petitioners in such proceedings is a nullity and inexecutable. Reliance has been placed on the decision of the Apex Court reported in A. I. R. 1993 Supreme Court 2324 (Karuppaswamy and others v. C. Ramamurthy),.