RAHIMA KHATUN Vs. SAMSER ALI

JUDGEMENT

(1.) This revision is directed against an order dt. 27th Jan. 1983 passed by learned Munsiff No. 1 at Dhubri in Title Execution Case No. 42 of 1981 dismissing the execution proceedings. The facts giving rise to this petition are these.

(2.) The present petitioners filed a Suit No. 393 of 1979 in the court of Munsiff No. 1, Dhubri against one Samser Ali for ejectment from the premises detailed and described in the schedule of the plaint on the ground of default in payment of rent. The suit was contested by Samser Ali. The trial Court decreed the suit whereupon an appeal was filed by Samser Ali in the court of Assistant District Judge, who on appraisal of evidence concurred with the findings reached by the trial Court and dismissed the appeal. The judgment and decree passed by the trial Court were affirmed. Samser Ali then preferred a revision petition under S.115, C.P.C. before this Court being Civil Revision No. 56 of 1982. That revision petition was heard on 3rd Sept. 1982 and was dismissed by this Court by a judgment and order dt. 3rd Sept. 1982, holding that Samser Ali, the defendant was a defaulter. This Court granted three months' time for vacation of the suit premises. The premises were however, not vacated during that period. Hence on the expiry of three months the present petitioners filed an application being Title Execution Case No. 42 of 1981 in the court of Munsiff No. 1 at Dhubri to execute the decree. The present opposite parties then filed a petition being No. 5821 on 19th Nov. 1982 seeking dismissal of the execution proceedings on the ground that the decree passed in Civil Revision No. 56 of 1982 was a nullity inasmuch as, it was passed against Samser Ali, who had died on 2nd Sept. 1982. The application was opposed by the decree-holder but the executing court dismissed the execution proceedings on the ground that the decree was a nullity, hence not executable. The decree-holder being aggrieved has preferred this revision petition. 2A. I have heard the learned counsel for the revisionist as also the opposite parties who are the legal representatives of deceased Samser Ali.

(3.) It was not disputed before me that Samser Ali had died on 2nd Sept. 1982. The Civil Revision Petition No. 56 of 1982 filed by Samser Ali against judgment and decree passed in Title Appeal No. 49 of 1981 was heard by a learned single Judge of this Court on 3rd Sept. 1982. The counsel for Samser Ali as also the counsel for the plaintiff-decree-holder were present before the Court at the time of hearing of the revision petition and were in fact heard. This Court after hearing the learned counsel for both the parties declined to interfere with the judgment and decree passed by the court below and rejected the revision petition on merits by a judgment and order dt. 3rd Sept. 1982. It appears that the learned counsel for Samser Ali did not inform the learned single Judge of this Court on 3rd Sept. 1982 at the time of hearing of the revision petition that Samser Ali had already died a day before, that is, on 2nd Sept. 1982. The learned counsel for the decree-holder opposite parties also did not inform the Court of this fact. May be, the counsel for both the parties were not aware of the death of Samser Ali which had occurred only on the preceding day. The legal representatives of Samser Ali, deceased, had also not appeared before the Court on 3rd Sept. 1982 to convey the information about the death of Samser Ali. Quite obviously, they must have been in the mourning. This Court therefore could not derive from any source whatsoever the information with regard to the death of Samser Ali. As a matter of fact, the learned counsel for both the parties appeared before the Court when the revision petition was taken up for hearing, submitted their arguments and after hearing them the learned single Judge dismissed revision petition on merits. Thereafter the decree-holder proceed to execute the decree and it is in the execution proceedings the legal representatives of the deceased Samser Ali filed an objection to the execution of the decree stating that Samser Ali had died on 2nd Sept. 1982; hence the decree passed by this Court on 3rd Sept. 1982 was a nullity and therefore not executable. This objection was filed by the legal representatives on 19th Nov. 1982, that is, on the 78th day of the death of Samser Ali. The executing court below accepting the contention of the legal representatives of Samser Ali, dismissed the execution petition. It held that the decree passed by this Court in revision petition was a nullity and as the decree of the court below had merged into the decree passed by this Court into the revision petition, the execution of a decree which was a nullity could not be made. The learned counsel for the decree-holder petitioner submitted that the view taken by the executing court was erroneous and the court below had failed to exercise its jurisdiction to execute the decree. At any rate, the court below has acted illegally in rejecting the execution petition. The submission was that the trial court had decreed the suit against Samser Ali, when he was alive. Thereafter Samser Ali filed an appeal in the court of the Assistant District Judge. That appeal was decided on merits and dismissed by the learned Assistant District Judge when Samser Ali was alive. Thereafter Samser Ali himself filed the revision petition in this Court. He was the sole petitioner before this Court. The revision petition was heard and was dismissed after hearing the learned counsel for both the parties on 3rd Sept. 1982. The learned counsel submitted that the order dt. 3rd. Sept. 1982 passed by this Court in Civil Revision No. 56 of 1982 in its revisional jurisdiction was not a decree, inasmuch as, the revisional application is not an original proceeding, that this Court having declined to modify or set aside the decree passed by the courts below the same remained in operation and could hence be executed and that as the legal representatives of Samser Ali did not approach this Court to have the order passed in the revision petition set aside and to have them substituted in the revision petition and to seek its re-hearing it was not open to them to challenge the validity of the decree under execution. The learned counsel for the present opposite parties, on the other hand, submitted that the decree passed by the courts below had merged in the decree passed by this Court in the revision petition and as the decree passed by this Court was against a dead person, it was a nullity and the executing Court had rightly declined to execute the same.