ISHAQUE KHAN Vs. JAUBAR ALI KHAN

JUDGEMENT

(1.) Some of the defendants (heirs of original defendant not. 1 and 2) are the appellants in the present second appeal. This appeal is against the final decree passed in Partition Suit No. 3 of 1961. The question involved in this appeal though seems to be short and simple yet at the same time is a very interesting one. The question is whether absence of the heirs of Shakhawat Khan as also Kabir Khan, the original defendants, on the record after passing of the preliminary decree and before the preparation of the final decree rendered the final decree in question a nullity. The learned counsel appearing for the defendants -appellants has contended that the heirs of Shakhawat Khan and Kabir Khan (the original defendant Nos. 1 and 3) and Most. Nazo (one of the substituted heirs of original defendant No. 2 Baratu Khan) having not been brought on the record before the preparation of the final decree, the final decree was a nullity and has to be set aside and the view of the appellate court, to the effect that the final decree having been prepared in presence of the appellants and the appellants having participated in the preparation of the final decree could not be challenged by the appellants and it was only voidable at the instance of the legal representatives of such defendants who died after the passing of the preliminary decree, was wrong.

(2.) Admittedly Sheikhawat Khan (defendant No. 1), Kabir Khan (defendant No. 3) and Most. Nazo (one of the substituted heirs of Baratu Khan (defendant No. 2) died after the preliminary decree and before the final decree was sealed and signed and it is also admitted that the final decree was prepared in absence of the heirs of these persons. So the question is whether the final decree, under such circumstance, was a nullity or only voidable at the instance of the legal representatives of the aforesaid deceased defendants.

(3.) It is well settled that there is no abatement on account of the death of a party after the preliminary decree as, the rights of the parties stand already determined by that decree. In view of such well established principle of law the provisions of Rules 3 and 4 of Order 22 of the Code of Civil Procedure (hereinafter referred to as 'the Code') have no application in case of death of a party after the preliminary decree and the case is governed by the provisions of Rule 10 of Order 22 of the Code. Reference be made to the case of Babuie Shanti Devi v/s. Khodai Prasad Singh and others ( : AIR 1942 Pat 340) and also to the case of Ram Sewak Mishra and another v/s. Mt. Deorati Kuer and others ( : AIR 1962 Pat 178).