BHRIGUNATH SINGH Vs. HARBANSH ROY

JUDGEMENT

(1.) This civil revision application is directed against the order dated l6-7-1985 passed by Sri Madhvendra Saran, 4th Additional Subordinate Judge Patna in Misc Case No. 19 of 1984 whereby and whereunder he held that the decree passed in favour of the petitioners is a nullity as during the pendency of the suit one of the defendants namely defendant no. (Bishwanath Singh) died and in his place his heirs and legal representatives were not brought on the record.

(2.) According to the learned Court below the original defendant no. 7 died some times in March, 1982. The decree was passed in title suit no. 190/59 of 1980/1983 on 30-12-1983-Admittedly, the heirs of aforementioned deceased defendant no. 7 (Bishwanath Singh) were not brought on the record by the decree holder by filing a substitution application. However, the other defendants did not raise any objection with regard to the same during the pendency of the suit. After the decree was passed one of the judgment debtors sold away a portion of the property in suit by a sale deed dated 5-3-1984 thereafter the decree was put under execution.

(3.) In the said execution case an objection was taken on behalf of the judgment debtors to the effect that the decree was become inexecutable being a nullity for the reason that Bishwanath Singh died leaving behind him four daughters who inherited the interest of Bishwanath Singh but they were not added as party to the suit. Apart from the other pleas the decree holder contended that in the suit the defendant no. 7 was added as a defendant third party and no relief was claimed against him and as such the suit did not abate by reason of death of said defendant no. 7. Learned counsel appearing on behalf of the petitioners submitted that the Court below had committed a material irregularity in exercise of its jurisdiction inasmuch as he had failed to take into consideration as to whether the defendant no. 7 was a proforma defendant or not. In this Connection learned counsel for the petitioners has drawn my attention to the following findings of the learned Court below. The decree shows that defendant no. 7 Bishwanath Singh is defendant 3rd party. The decree does not show that the defendant no. 7 is a proforma defendant and that no relief has been claimed against him.At this stage we cannot look into the plaint to decide the status of the defendant no. 7. Therefore, now it cannot be said that defendant no. 7 was an unnecessary party and that no relief was sought against him.