SHALINDER SINGH Vs. JAI KAUR

JUDGEMENT

(1.) ORDER :- This order will dispose of Civil Revision Petitions Nos. 451 and 902 of 1984, as both of them have been filed against the common order of the executing Court dated November 29, 1983.

(2.) Shalinder Singh, petitioner, filed the suit for declaration and possession of the agricultural land against Kehar Singh and Devinder Singh. Devinder Singh was proceeded against ex parte whereas Kehar Singh contested the said suit. During the pendency of the said suit, Kehar Singh died on October 31, 1973. In spite of that, counsel for Kehar Singh continued to appear on the subsequent dates. It was on March 24, 1975, when he made a statement in the Court that Kehar Singh had since expired and that his presence be not marked. On this statement, the case was adjourned to April 5, 1975, to enable the plaintiff to file the application for bringing on record his legal representatives. However, thereafter, the case was adjourned from time to time. On July 23, 1975, the trial Court passed the following order, - "Present c.f. the plaintiff. On 24-3-75 Sh. Sukhdev Singh counsel for the defendant No. 1 made a statement that his client defdt. No. 1 has since died and he wanted adjournment to move an application to bring the L.Rs. on record of the said deceased defdt. Till today no appl. has been filed by either of the parties. But in view of the amendment in the C.P.C. by our own Hon'ble High Court it is the duty of the heirs of the deceased to bring on the record the L.Rs. of the deceased as per provision of new added Rule 2-B of Order 22. Therefore in view of the said provision of law plaintiff is not bound to move an application for bringing the LRs. on record of the deceased defdt. Today none is present on behalf of either of the surviving defendants. Hence they are proceeded against ex parte. To come up on 14-8-75 for ex parte evidence. Ultimately, the suit was decreed ex parte on December 16, 1975. The execution of the said decree was sought on May 29, 1976. To the said execution, objections were filed on behalf of the legal representatives of Kehar Singh as well as Devinder Singh who was proceeded against ex parte. The executing Court vide order dated December 15,1976, dismissed the execution application. However, in appeal, the case was remanded to the executing Court vide order dated September 26, 1979. It was directed that after framing the necessary issues and allowing the parties to lead evidence, the objection petition be decided in accordance with law. This time, necessary issues were framed by the executing Court. It was found that Kehar Singh had died on October 31, 1973. The ex parte decree against him was liable to be set aside as his legal representatives were not brought on the record within time and, thus, the suit will be deemed to have abated. Since the ex parte decree was passed at the back of his legal representatives, the same could not bind them as they were not given the opportunity of being heard. Not only that, even the objections filed on behalf of Devinder Singh who was proceeded against ex parte were also allowed and the ex parte decree against him was also set aside. Thus, while accepting the objection petition filed on behalf of the judgment-debtors, the executing Court also set aside the ex parte decree dated December 16, 1975, as well. Dissatisfied with the said order, the decree-holder Shalinder Singh filed Civil Revision Petition No. 451 of 1984 whereas Baboo Singh and others, legal representatives of Kehar Singh, deceased, have filed Civil Revision Petition No. 902 of 1984.

(3.) According to the learned counsel for Baboo Singh and others, after accepting the objection petition filed on their behalf, the executing Court could not set it aside. The ex parte decree and that the said direction in the impugned order were without jurisdiction. In the revision petition filed on behalf of Shalinder Singh, it was submitted that in view of sub-rule (4) as substituted by this Court in O.XXII, R.4, Code of Civil Procedure, which was published on March 18, 1975 and came into force with effect from April 11, 1975, it was the duty of the counsel for the deceased defendant to bring on the record, his legal representatives and as he failed to do so, the trial Court rightly passed the order dated July 23. 1975 and therefore, the ex parte decree could not be held to be a nullity. It was a valid decree passed by a competent Court. In any case, argued the learned counsel, even if the legal representatives are to be allowed an opportunity for being brought on the record, in that situation, the parties should be relegated to the position which existed on July 23, 1975, when the trial Court passed the order reproduced in the earlier part of this judgment, and that the suit be decided on merits in accordance with law.