DHANI Vs. GIAN CHAND

JUDGEMENT

(1.) This judgment of mine will dispose of Civil Miscellaneous Application Nos. 213-C of 1970, 414-C and 416-C of 1973 in Regular Second Appeal No. 715 of 1958, and Regular Second Appeal No. 715 of 1958.

(2.) The facts giving rise to the present case are that Kirpu was the last male-holder of the property in dispute who died on March 13, 1932. The plaintiff is the daughter of the deceased whereas defendants 1 to 8 are his fourth degree collaterals. She brought a suit for possession of the property in dispute on December 21, 1955, on the allegation that defendant Nos. I to 8 were in illegal possession of the property and that she was entitled to the same. Defendants 9 to 13 are the mortgagees of some of the land. The defendant-collaterals contested the suit inter alia, on the ground that they were preferential heirs of the property in dispute, that it was ancestral qua the defendants and Kirpu deceased, that the parties were governed by custom in matters of succession and that the suit was not within limitation. The trial Court held that the parties were governed by custom, that the plaintiff was daughter of Kirpu, that the land was non-ancestral, and that her suit was not barred by limitation. Consequently, it decreed the suit of the plaintiff. Defendants 1 to 8 filed an appeal before the Senior Subordinate Judge who modified the decree of the trial Court and dismissed the suit regarding khasra numbers which were not under mortgage with defendants 9 to 13. Shrimati Dhani came up in appeal against the said judgment and decree of the first appellate Court to this Court and it was numbered as Regular Second Appeal No. 715 of 1958. The defendant-collaterals filed a cross appeal, Regular Second Appeal No. 766 of 1958 against the same judgment. Both the appeals came up before Gurdev Singh, J. who accepted appeal No. 715 of 1958 filed by the plaintiff and decreed the suit of the plaintiff in toto and dismissed appeal No. 766 of 1958 of defendants on July 22, 1966. After decision of the appeals by the learned Single Judge, an application under Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was filed by the defendant-respondents in Regular Second Appeal No. 715 of 1958 stating that Khushia son of Mohna respondent had died on January 11, 1960, and Nikoo son of Gadu on July 31, 1960, and that their legal representatives had not been brought on record by the plaintiff-appellant till the decision of the appeal. On account of the deaths of the aforesaid two respondents, Regular Second Appeal No. 715 of 1958 had entirely abated. The above fact was not within the knowledge of the learned counsel for the respondents and, therefore, was not brought to the notice of the Court at the time of arguments. Consequently, it was prayed that the decree passed by this Court in Regular Second Appeal No. 715 of 1958 be set aside. This application was listed before Gurdev Singh, J., who referred the following question to a larger Bench by order dated August 23, 1971:

(3.) The first contention of the learned counsel for the defendant-applicant is that the decree was passed by this Court in ignorance of the deaths of some of the respondents and that the same is liable to be set aside on this ground. The matter has been settled by the learned Division Bench which observed that an order or decree passed against a dead person an be reopened and set aside by a Court in exercise of its inherent jurisdiction under Section 151 of the Code. The paragraph containing the relevant observations is as follows :-