BHAGABAT SAHU Vs. PARBATI SAMAL

JUDGEMENT

(1.) The decree-holder in a title suit assails in this application Under Section 115 of the Civil P. C. the order of the Executing Court entered on an application Under Section 47 of the Civil P. C. holding that the final decree was not executable.

(2.) The short facts relevant for the point arising for consideration are these : The plaintiff-petitioner filed two suits, being Money Suit No. 320 of 1965 for realisation of a specific amount and Title Suit No. 129 of 1966 for dissolution of a partnership and rendition of accounts. The two suits were heard analogously and decreed on 22-7-68. The defendant preferred Title Appeal No. 115 of 1968 and Money Appeal No. 31 of 1968 against the respective decrees. Money Appeal No. 31 of 1968 was dismissed and the Title Appeal was allowed. Thereupon the plaintiff-petitioner preferred Second Appeal No. 7 of 1970 against the reversing decree of the Title Appeal and the defendant preferred Second Appeal No. 4 of 1970 against the affirming decree in the Money Appeal. During the pendency of these two appeals before this Court, the sole defendant died on 1-12-72 leaving behind his widow, 3 sons and 4 daughters. In defendant's Second Appeal No. 4 of 1970 the legal representatives were substituted on their own asking and in Second Appeal No. 7/70, the plaintiff-appellant took steps for bringing the legal representatives of the deceased defendant on record. Second Appeal No. 4 of 1970 was dismissed and the money decree became final. Second Appeal No. 7 of 1970 was remanded to the lower Appellate Court on the points indicated in this Court's judgment. After remand, the legal representatives were heard and their appeal was dismissed on contest on 21-12-73. As the legal representatives of the defendant did not prefer any further appeal, the appellate decree became final. The plaintiff levied Execution Case No. 9 of 1978 for realisation of the money decree and the amount was recovered. The plaintiff filed another independent execution case for realisation of the costs decreed in the preliminary decree in the Title Suit and the same was also paid by the legal represervatives of the original defendant. Final decree proceeding was taken by the plaintiff as the defendant's legal representatives failed to amicably finalise the accounts. In the final decree proceeding notices were issued to the opposite parties and the opposite party No. 1, the mother, received notices for self and as mother-guardian of the minor children on 2-9-74. When a pleader-commissioner was appointed in the final decree proceeding, the mother also appeared for herself and for the minor children as would appear from a memorandum of appearance available in the records of the original suit in the final decree proceeding. The memorandum is dated 14-12-74. The commissioner allowed time, but thereafter the mother did not take any steps. The commissioner submitted report after taking accounts and ultimately the final decree was passed. When Execution Case No. 6 of 1978 was levied for recovery of the money in terms of the final decree, the mother-guardian for self and as guardian of the minors as also some of the legal representatives of the original defendant who had become major in the meantime filed an objection. At their instance, the objection was treated as an application Under Section 47 of the Civil P. C. and Miscellanous Case No. 218 of 1978 was registered. In the executing court it was contended that the final decree was passed without getting the minors adequately represented and, therefore, the minors were not bound by the decree and the decree itself became a nullity. This objection of the judgment-debtors has been accepted. That is how the decree holder is before this Court in revision.

(3.) The question that is canvassed has two facets:-