SAILA BALA BOSE Vs. ALOKA BOSE

JUDGEMENT

(1.) The short point involved in this case is whether a final decree is a nullity which was passed at the time when some of the Defendants died but after the passing of the preliminary decree. In this case the Plaintiff -revisionist instituted a suit for partition against her co -sharers and obtained a decree in preliminary form on January 30, 1974. The, final decree after acceptance of Commissioner's report in such suit was passed on March 24, 1986. The Plaintiff filed an Execution Case being Title Execution Case No. 16 of 1987 on August 10, 1987. One of the Defendants preferred an objection under Sec. 47 of the Code of Civil Procedure which was numbered as Misc. Case No. 65 of 1987 alleging, inter alia, that during the pendency of the suit and prior to the date of final decree, the original Defendant No. 2 (Kamala Bala), Defendant No. 4 (Sitanath) and Defendant No. 5 (Ram Chandra) died. The respective dates of death of such Defendants as stated are July 12, 1985, February 5, 1974 and June 27, 1980. It has further been alleged that some more Defendants who were added subsequently also died.

(2.) In the said Misc. Case, the present Petitioner in this Revision filed a written objection contending that she was kept out of the knowledge of the death of those Defendants and that the Executing Court could not go into such questions as it could not go behind the decree. The learned Assistant District Judge on consideration of the materials placed before him in the shape of death certificates held that some of the Defendants died after the passing of the final decree. Accordingly, he held that the decree against the dead persons being a nullity could not be executed. Being aggrieved by such judgment and order the' Plaintiff -Petitioner has come up in Revision.

(3.) Sri Tarun Chatterjee, the learned Advocate representing the Petitioner in this Revision, has urged that the rule of abatement as contained in Order 22 Rule 4 of the Code of Civil Procedure would not apply and that the provision of Order 22 Rule 10 which relates to continuance of the suit or proceedings in case of assignment, creation or devolution of any interest during the pendency of a suit and before the final order is passed in such suit or proceeding would apply.