AWADH BIHARI TEWARI Vs. SUDARSAN RAI

JUDGEMENT

(1.) The facts leading to this miscellaneous second appeal may be stated in brief as follows. In 1953, respondent No. 2, Maharaja Kumar of Dumraon, filed a suit for rent (suit No. 452 of 1953) against three persons: Mt. Sonmukha Kuer (mother of the present respondent No. 1 Sudarsan Rai), Vijayee Tewari (respondent No. 3) and Ghuran Rai (respondent No. 4). Mt. Sonmukha Kuer died during the suit, but in spite of that, the suit was decreed against the three defendants, including herself. There was no substitution of her legal representatives in the suit after her death. An execution was levied on the decree, Execution Case No. 368 of 1954, against three judgment-debtors and in that proceeding, an auction sale was held on the 20th January, 1955, of the property involved in the present proceeding and the decree-holder, respondent No. 2, purchased that. The sale was confirmed on the 22nd of February, 1955, and sometime thereafter, the auction purchaser reportedly took possession of the property. Mt. Sonmukha Kuer's son Sudarsan Rai made an application tinder Section 47 and under Order 21 Rule 90 of the Code of Civil Procedure in the executing court, on the 18th of August 1958, to set aside the sale, mainly, on the grounds that the decree passed in the rent suit was a nullity, inasmuch as his mother, who was one of the defendants, had died during the pendency of the suit and before the decree, without being substituted by the legal representative; and that processes of the court, in the execution case, were fraudulently reported to have been served upon her, and as such, there was a fraud practised in the proclamation and conduct of the sale. He alleged that he came to know of the sale on the 10th of August, 1958. A week before this application was filed in court, the auction-purchaser (respondent No. 2) had sold the said property to two persons, who are the present appellants in this appeal, Awadh Behari Tewari and Swaminath Tewari, on the 11th of August, 1958, by a registered instrument. The transferees opposed the application of Sudarsan Rai, but the sale was set aside by the Executing Court on the 30th of July, 1960. Against that, an appeal was taken by the two transferees from the auction-purchaser but that failed on the 30th of September, 1961, by the orders passed by the first Additional Subordinate Judge, Arrah. The present appeal is directed against that.

(2.) For the appellants, it was contended that Sudarsan Rai was not a representative of a person who was a party to the suit, because, on the death of Mt. Sonmukha Kuer, the suit had abated against her and she was not to be deemed to be a party to the suit. Section 47 of the Code of Civil Procedure permits one who was a party to the suit or who is representative of such a party, to ask the Executing Court to determine any question that may arise between him and another person who was either a party to the suit or his representative. The section reads as follows:

(3.) Rule 4 of Order 22 of the Code of Civil Procedure (to be referred hereafter as the Code, for brevity) provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendants alone, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit, but, where, within the time limited by law, no such application is made, the suit shall abate as against the decreed defendant. Learned counsel urged that when a suit abates, it is completely destroyed as far as the deceased is concerned and it will be deemed as if there was no suit brought against him or her. I am afraid, this is not the correct leaning of abatement of the suit. In Words and Phrases, Permanent Edition, Volume I, page 65, "abatement"' has been defined as "a suspension of proceedings in a suit for the want of proper parties capable of proceeding therein." This definition has been culled from two reported decisions mentioned in that book. The effect of an abatement, if it is not set aside under Rule 9 of Order 22 of the Code, is virtually a decree and the order of abatement is considered to have determined the rights between the parties and it operates as a decree in favour of the deceased defendant. That decree becomes final, as a result of abatement see Bhikaji v. Purshotam, ILR 10 Bom 220; Naimuddin v. Maniruddin, 32 Cal WN 299 (302): (AIR 1928 Cal 184 (185)): Rahimunissa Begam v. Srinivasa Aiyangar, 38 Mad LJ 266: (AIR 1920 Mad 580). Rule 9(1) of Order 22 provides that where a suit abates, no fresh suit shall be brought on the same cause of action. This provision is similar to that under Rule 9 of Order 9, Rule 2(2) of Order 2 and Rule 1 of Order 23. This position clearly indicates that the legislature equated an abatement of a suit with its dismissal, so far as the deceased person is concerned. On the death of a defendant, he does not cease to have been a party to the suit. In a case where the Court finds that a particular defendant is not a proper party and strikes off his name from the suit, or where the plaintiff asks for expunging his name from the plaint for some reason, a person so removed From the proceedings of the suit will be deemed as if, against him, no suit was instituted. In that sense, he is not a party to the suit at any stage see Manakchand v. Manoharlal, AIR 1944 PC 46; Mt Kusmi v. Sadasi Mahto, AIR 1942 Pat 432 and Suresh Mohan Thakur v. Shamal Mall Bubna, AIR 1957 Pat 437. But, if a suit is dismissed against a defendant for any reason, in the decree or at any time earlier than the decree was passed, such person can come within the explanation given under Section 47. The abatement of a suit being of a nature of dismissal, the person concerned can also, in that view, be covered under that explanation. If a suit abates as far as a deceased plaintiff is concerned, the position will be the same and his representative can come within the meaning of Section 47. In that view, Mt. Sonmukha Kuer was a party to the suit till its abatement occurred against her. If her legal representative would have been substituted, he would have become a party to the suit. But without such substitution, he can still be called a representative of a person who was a party to the suit, and in that capacity, he is competent to maintain an application under Section 47 of the Code, if it is in respect of execution, discharge or satisfaction of the decree.