SOBHAG NARAIN MATHUR Vs. SUDERSHAN LAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 13-2-2006 passed by the learned Additional District judge No. 2, Ajmer, whereby the learned appellate court held that the suit did not abate on the death of defendant No. 2 balveer Jain and therefore, his name be deleted from the array of defendants as the right to sue survives with the plalntiff sudarshan Lal s/o Shri Bhana Ram.

(2.) THE facts giving rise to the present revision petition in brief are as under :-The present petitioner Sobhag Narain mathur filed a suit for specific performance against the defendant-Balveer Jain, power of attorney holder of Sudarshan Lal s/o Shri bhana Ram. The said suit was decreed ex parte on 12-1-1987. Thereafter, the plalntiff Sudarshan Lal filed a Suit No. 117-1989 (new No. 44/1993) against the present petitioner Sobhag Narain Mathur, Balveer Jain and UIT, Ajmer for cancellation of the aforesaid ex parte decree dated 12-1-1987. The said suit was rejected by the trial Court on 16-4-2004. The plalntiff filed an appeal before the learned District Judge against the said order and during the pendency of the said appeal, the defendant No. 2 Balveer jain, power of attorney holder of Sudarshan lal expired. The date of death of the said balveer Jain has not come on the record. The appellant Sudarshan Lal filed an application before the appellate Court for deleting the name of the respondent No. 2 Balveer jain on 10-8-2005. As against this, the present petitioner Sobhag Narain Mathur filed an application before the said appellate Court in Appeal No. 13/2004 that since more than 90 days have elapsed after the death of respondent No. 2 Balveer Jain and the appellant has not taken any steps for bringing legal representatives of the defendant No. 2 Balveer Jain on record, therefore, appeal as a whole has abated and deserves to be dismissed. The said application of the present petitioner Sobhag Narain mathur has been rejected by the appellate court vide the impugned order dated 13-2-2006 and application of the appellant dated 10-8-2005 was allowed deleting the name of the defendant No. 2 Balveer Jain, the power of attorney holder. Hence, this revision petition by the defendant Sobhag narain Mathur before this Court.

(3.) MR. Piyush Nag, learned counsel appearing for the petitioner has contended that the defendant No. 2 Balveer Jain was a necessary party in the suit, since he was the judgment-debtor under the ex parte decree dated 22-1-1987 in the suit filed by the plalntiff-Sudarshan Lal seeking cancellation of the said ex parte decree, therefore, with his death, if his LRs are not brought on record, the appeal as a whole abates and therefore, the learned appellate Court has erred in rejecting his application vide order dated 13-2-2006. He has relied upon the judgment in the case of Satguru Sharan shrivastava v. Dwarka Prasad Mathur (dead)through LRs and Ors. reported in AIR 1996 sc 3504. The facts giving rise to the said judgment as noticed by the Hon'ble Supreme court in para 2 of the judgment were as under :-