SHANTI RAJORIYA Vs. CHIMAN SINGH

JUDGEMENT

(1.) THIS revision petition under Section 115 of the Code of Civil Procedure has been directed against the order dated 2.3.93 passed by learned Civil Judge, Bikaner whereby he dismissed the application of the petitioners filed under Section 151 CPC.

(2.) THE facts relevant to the revision are that a suit was filed on 21.5.91 by respondent Chiman Singh claiming to be the heir of Smt. Sayar Kanwar against two persons namely Shri Harsahay and Smt. Narmada Devi challenging the registered sale deed dated 10.2.72 executed by Smt. Sayar Kanwar in favour of Shri Harsahay and Smt. Narmada Devi. It was alleged that certain persons forcibly tried to enter upon the disputed land on 10.3.91 and when Chiman Singh resisted them, they informed that 100 blghas of land had been sold to them by Smt. Sayar Kanwar. The suit was ordered to be registered on 23.5.91 and on 25.5.91 it was ordered that summons be issued to the defendants and summons be also published in news paper. The case was fixed on 1.6.91. On that date it was noticed that the summons had been published in the newspaper but none had appeared to contest the suit. The suit was ordered to proceed exparte on 20.7.91 and thereafter the plaintiffs evidence was recorded and decree was passed on 25.10.91. It is on 23.11.91 that the petitioners Smt. Shanti and Shri Kapil Kumar claiming to be daughter of Harsahay and grandson of Narmada Devi made an application under Section 151 CPC stating that both the defendant Shri Harsahay and Smt. Narmada Devi had died long before the suit was instituted and, therefore, the decree passed against them was a nullity and it be set aside. It was stated that plaintiff Chiman Singh had played fraud on the Court. The learned Court gave notice to plaintiff Chiman Singh and after recording the evidence and hearing the parties, dismissed application of the petitioners saying that they were required to file civil suit for getting the decree set aside and such order could not be passed under Section 151 CPC. Hence, this revision.

(3.) THE learned Counsel for the petitioners contended that when the decree is against the dead persons, apparently it is a nullity and the petitioners should not be compelled to file a civil suit and the Court under its inherent powers should have set aside the decree. He has placed reliance on the cases of Suraj Deo v. Board of Revenue : AIR1982All23 , Pillayathiri v. Laxmi Amma : AIR1967Ker135 and Mst. Surji v. Manshi Ram : AIR1951All381 .