JAGSIR SINGH Vs. MAHASHA DEV RAJ

JUDGEMENT

(1.) IN this revision petition filed under Article 227 of the Constitution of India, the petitioner is aggrieved against the order dated 28.04.2008 (Annexure P -4) passed by the executing court whereby the objections filed by him were dismissed.

(2.) BRIEFLY stated, the facts of the case are that in the year 2000 -01, the plaintiff -respondent filed a suit for recovery of Rs. 2,60,000/ - against Balchittar Singh, father of the petitioner, on the averments that on 4.2.1998, the defendant -Balchittar Singh took a loan of Rs. 1,55,000/ - on the agreed rate of interest, i.e. 2% per month, and executed a pronote and receipt in that regard. It was pleaded that an amount of Rs. 1,05,000/ - was standing due against him on 4.11.1999 to one Parmod and Company and the defendant requested the plaintiff to adjust the said amount of Rs. 1,05,000/ - and to take the liability of said company in respect of that outstanding debt of Rs. 1,05,000/ -. The defendant executed pronote and receipt for an amount of Rs. 2,60,000/ - in favour of the plaintiff. The defendant took the previous pronote dated 4.2.1998 back and executed fresh one dated 4.11.1999 for an amount of Rs. 2,60,000/ -. The plaintiff requested the defendant to make the payment of the loan amount of Rs. 2,60,000/ - as principal and Rs. 45,000/ - as interest at the rate of 2% per month but non -payment of the same gave rise to the filing of the suit for recovery. Upon notice, the defendant filed a written statement raising various preliminary objections including that the pronote and receipt were forged and fabricated one. Denying the other averments made in the plaint, a prayer for dismissal of the suit was made. The trial court framed issues on 22.11.2001 and the plaintiff concluded his evidence on 18.1.2002. When the case was at the stage of defendant's evidence, the defendant -Balchittar Singh expired on 25.2.2002. The said fact was brought to the notice of the trial court by the counsel for the parties but the legal representatives of the defendant were never brought on record nor any notice was served upon them. Thereafter, the trial court closed the evidence of the defendant and passed a decree for recovery of Rs. 2,60,000/ - against the defendant on 3.5.2002. On 27.5.2006, the petitioner (son of deceased Balchittar Singh) on coming to know that the plaintiff -respondent had procured a decree against his father by fraud and cheating, filed an objection petition before the executing court. However, the said objection petition was dismissed by the executing court vide order dated 28.4.2008. Hence, the present revision petition.

(3.) LEARNED Counsel for the petitioner has raised two -fold submissions; firstly, that Judgment debtor -Balchittar Singh, father of the petitioner, had expired on 25.02.2002 whereas the trial Court passed the decree on 03.05.2002, i.e. after the death of the defendant and, therefore, the decree was null and void as having been passed against a dead person; secondly, that when the defendant had died during the pendency of the suit, the suit stood abated as it was the duty of the plaintiff to file an application to implead the legal representatives of the deceased -defendant in the suit. Therefore, the objections were erroneously dismissed by the executing court.