HIMANGSHU BHUSAN KAR Vs. MANINDRA MOHAN SAHA

JUDGEMENT

(1.) This appeal arises out of a proceeding in execution. The present appellants who were the defendants in the original suit were the tenants under the plaintiff respondent Manindra Mohan Saha and his brother Jatindra Mohan Sana. These two brothers instituted a suit for ejectment against the defendants appellants and obtained a decree. That decree was put into execution and in the executing court an objection was filed by the judgment debtors under section 47 of the Code of Civil Procedure. The objection which is material for our present purpose arises on the following allegations, viz., that during the pendency of the ejectment suit one of the plaintiffs Jatindra Mohan died on the 22nd November 1950, but the suit was decreed on the 16th June 1951 without any substitution in place of Jatindra and without any step having been taken in that behalf or in consequence of the said death. It is, accordingly, contended that the suit abated and, therefore, the decree passed was without jurisdiction and was a nullity. The learned Small Cause Court Judge before whom the decree was being executed overruled this objection upon the view that the executing court was not entitled to go behind the decree as, in his opinion, the defect alleged was not one of jurisdiction. He further found that the surviving plaintiff on the record who was executing the decree before him was the sole heir and legal representative of the deceased plaintiff.

(2.) Prom the decision of the learned subordinate Judge, as appeal was taken to the Special Bench of the court of Small Causes. That appeal, however, was dismissed for default as the judgment-debtor appellants failed to comply with an order passed by the Special Bench under section 14(5) of the Rent Control Act of 1950. The tenants judgment-debtors have now come up in second appeal to this Court.

(3.) In support of the appeal, three points have been urged by the learned Advocate appearing for the appellants. His first contention is that the Special Bench was wrong in applying section 14(5) of the Rent Control Act to the present case. In the second place, he contended that on account of the death of Jatindra during the pendency of the ejectment suit there was an abatement so far as he was concerned as there was no substitution in his place within the time allowed by law and that partial abatement entailed a total abatement of the suit having regard to its nature, viz., that it was an ejectment suit and the fact that the shares 'of the plaintiffs could not be ascertained on the materials on record. In the third place, the learned Advocate contends that even if the case comes under Order 22, Rule 2 of the Code of Civil Procedure, a note would be necessary regarding the fact of death and the other fact, viz., that the heir of the deceased is already on the record and as there was no such note in the present case, the decree passed was without jurisdiction, He, accordingly, contends that the executing court ought to have refused execution of the ejectment decree.