SURAJ KOIRI Vs. BISHWANATH PRASAD

JUDGEMENT

(1.) This miscellaneous second appeal is directed against an order passed under Section 47 of the Code of Civil Procedure.

(2.) It appears that Title Suit No. 34 of 1958 was instituted by the respondents for a declaration of their title over certain lands, recovery of possession thereof, mesne profits and a further declaration that they were entitled to withdraw the sale proceeds of the usufruct of the land in question. The plaintiffs filed the suit as a result of an order passed against them under Section 145 of the Code of Criminal Procedure. There were two sets of defendants in this case. Defendants 1 to 24, who are Rajputs and for the sake of convenience, have been termed as the Rajput defendants and another set belonging to the Koiri community, defendants 25 to 39 who have been termed as the Koiri defendants. Out of these Koiri defendants, defendant 25. Narsingh Koiri and his sons defendants 26 to 30 were parties to the proceeding under Section 145 of the Code of Criminal Procedure. The remaining Koiri defendants 31 to 39 were the minor sons of defendants Nos. 26 and 27. They were not parties to that proceeding. In the suit aforesaid the Koiri defendants confined their claim to two Khatas, namely. 105 and 154 alone. The Rajput defendants claimed the remaining lands in question. The suit was decreed by the trial Court on the 31st of July, 1961. An appeal to the district Judge was made and that also was dismissed on the 23rd of March, 1966. There was a second appeal to the High Court which also was dismissed on the 19th March 1969. Execution was levied in Execution Case No. 25 of 1961. An ob-iection was filed therein on the 5th of May. 1969 by defendants 31 and 32, who were minors at the time of the suit, but had attained majority at the date of the objection. These two defendants alleged that during the tendency of the suit, defendant No. 39 Dharmrai Koiri, the minor son of defendant No. 27. Inderdeo, had died on the 24th August, 1958, but his legal heir, who was his mother had not been substituted in his place and for that reason the decree passed in that suit was a nullity. It may, however, be stated at this juncture that on the 6th. October, 1958 the plaintiffs had filed an application before the trial court saying that defendant No. 39 had died on the 24th of August. 1958 and that his "Wali" Inderdeo his father, was already on record as defendant No. 27 and, therefore, the name of defendant No. 39 may be expunged. The court passed an order accordingly expunging the name of defendant No. 39. The execution Court held that the defendants, were estopped from raising such a plea in the execution case not having raised it on any earlier occasion, that the order expunging the name of defendant No. 39 on the ground of his legal heir being on record was passed in the presence of the remaining defendants and no objection having been raised thereto, the objection was barred by the principle of constructive res judicata and that, the right to sue having survived in the case against the defendants, Order 22, Rule 2 of the Code was the provision applicable to the present case and not Rule 4 and the suit had not therefore abated and that the interest of the deceased defendant had been represented by the Karta of the family and that the deceased defendant was merely a pro forma defendant having no interest in the land and thus not a necessary party. The lower appellate-Court also concurred in the aforesaid findings of the execution Court, Hence this appeal.

(3.) Mr. Jagdish Sahay, appearing for the appellants, has raised the following points: Firstly he urged that there being no proper petition for substitution of the legal representatives or the deceased respondent, the decree-passed in the case was a nullity; secondly that the point with regard to the decree being a nullity can be taken for the first time even during an execution proceeding; and thirdly, that in the circumstances of the present case-the decree being joint and indivisible against the defendants the entire suit had abated. Learned counsel for the respondents has however, urged that upon the concurrent finding of fact arrived at. by the courts below to the effect that defendants 3l to 39 were not necessary parties to the suit it is not open to the appellants to ask this Court to enter into the merits thereof. Secondly it has been urged that the petition filed by the plaintiffs on the 6th of October, 1958 was in essence a petition for substitution of the legal heir of the deceas-- ed defendant and the same having been allowed by the court, it cannot be challenged, the appellants being estopped from doing so much less challenge for the first time during the execution proceeding. Thirdly, it has been urged that if facts are necessary to be investigated for the purpose of determining whether a court passing the decree had jurisdiction such an objection cannot be raised for the first time at the stage of execution.