1. Suit to set aside a collusive decree of specific performance based on fraud — Death of defendants — Abatement of suit. (Para 2 )
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1996 Supreme(SC) 1256
1996(6) Supreme 548
SUPREME COURT OF INDIA
K. Ramaswamy, S.B. Majmudar, JJ.
Satguru Sharan Shrivastava -Petitioner
versus
Dwarka Prasad Mathur (dead) through Lrs. & Ors. -Respondents
Special Leave Petition (C) No. 15054 of 1996
Decided on 14-8-1996
Counsel for the Parties :
For the Petitioner : S. Bagga, Sr. Advocate, Seeraj Bajja, Tanuj Bagga and Mrs. S. Bagga. Advocates.
For the Respondents : S.M. Jain, Sr. Advocate, Sushil Kr. Jain, A.P. Dhamija, Advocates.
A suit to set aside a collusive decree abates as a whole if it abates against the judgment-debtor, as any subsequent finding against the decree-holder would be inconsistent with the finality of the decree against the judgment-debtor.
Headnote:Civil Procedure Code, 1908-Order 22 Rule 4(4)-Suit for setting aside decree for specific performance obtained by second respondent against 1st respondent by fraud on petitioner-Death of 1st respondent and decree against that Judgment-debtor became final and suit abated -Appeal-Legality of decree against second respondent could not be gone into-Counsel for petitioner himself had got deleted first respondent on being informed about death of first respondent-Order 22 Rule 4(4) <a href=act:10444>CPC was clearly inapplicable. (Paras 2, 4 & 5)
Judgement Key Points
Certainly. Based on the provided legal document, here are the key points:
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The case involves a civil suit concerning the abatement of a suit due to the death of a party, specifically the first defendant in the original suit (!) (!) .
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The petitioner claimed that a fraudulently obtained decree for specific performance was passed against him, and he sought to challenge this decree, alleging collusion and fraud (!) .
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During the proceedings, both defendants died, and their legal representatives were substituted accordingly. The first defendant's widow was brought on record, and the second defendant's son was substituted as legal representative (!) .
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The court observed that since the first defendant (judgment debtor) had died and no legal representative was brought on record to contest the decree, the decree against him became final, and the suit against him abated (!) .
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The question arose whether a decree against a deceased person could be challenged or appealed, especially when the legal representatives were either substituted or absent. It was concluded that the decree against the first defendant was final and could not be re-opened (!) .
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The court examined whether the decree against the second defendant (decree-holder) could be challenged, given the allegations of fraud and collusion. It was found that any finding in the appeal would be inconsistent with the finality of the decree against the first defendant, leading to the abatement of the entire suit (!) .
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The petitioner argued that under the applicable procedural rules, the suit should not have abated entirely, and the legal representatives could be substituted without affecting the finality of the decree. However, the court held that once the decree against the first defendant became final and no legal representative was substituted, the entire suit was liable to abatement (!) .
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Consequently, the court dismissed the special leave petition, affirming that the suit had abated and the decrees could not be challenged further (!) .
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2. Whether a suit abates as a whole under Order 22, Rule 4(4) of the Code of Civil Procedure when a party is deleted. (Para 5 )
3. Deletion of a deceased defendant makes the decree against them final, rendering any subsequent finding against other defendants inconsistent and causing the suit to abate. (Para 3 , 4 , 5 )
4. Where a party is deleted from the array, the decree against them becomes final; if findings against remaining parties would be inconsistent, the suit abates. (Para 4 , 5 )
5. Does a suit necessarily abate as a whole under Order 22, Rule 4(4) of the CPC?
Not necessarily, but if an application is filed to delete a deceased defendant's name, the decree against that defendant becomes final. If findings against other defendants would then be inconsistent with that finality, the suit as a whole stands abated. (Para 4 , 5 )
6. What is the legal effect of deleting a deceased defendant's name from a suit?
The deletion of a deceased defendant's name from the array of parties results in the decree against that defendant becoming final. (Para 3 , 5 )
7. Can a court examine the legality of a decree against one defendant if the decree against a co-defendant, against whom the same fraud was pleaded, has become final?
No, because any finding given against the remaining defendant would be inconsistent with the final decree against the co-defendant, leading to the abatement of the suit as a whole. (Para 4 )
ORDER
Mr. Sushil Kr. Jain, Advocate takes notice for respondents.
2. This special leave petition arises from the judgment and order of the High Court of Madhya Pradesh, Gwalior Bench made on May 15, 1996 in First Appeal No. 17/89. The admitted position is that one Dwaraka Prasad Mathur was a member of the Secretarial Staff Housing Cooperative Society. Plot No. 14-C was allotted to him as a member and thereon he had constructed a house. It is the case of the petitioner that he had entered into an oral agreement of sale with him to purchase the house for a consideration of Rs. 20000/- subject to his obtaining permission for transfer from the Society as per the law. It is his case that he had paid up the amount due from Dwaraka Prasad Mathur to the Society and became member of the Society as per the resolution passed by the Society. But before he got the possession, surprise pruned upon him in the form of a decree of specific performance obtained by the second respondent Narvedeshwar Prasad Saxena in O.S.No. 77-A of 1976, date October 11, 1976. So he filed civil suit No. 121-A of 1984 on the plea that both the respondents had played fraud upon him and it was a collusive decree and sought to avoid the decree passed in suit No. 77-A of 1976 (suit No. 121-A of 1984 of the petitioner). Admittedly pending suit both the defendants died. As far as the first defendant is concerned, his widow Shakuntala was brought on record as his legal representative. As regards the second defendant, Prakash Chand Saxena, his son was brought on record as legal representative. He is the decree holder in the above suit No. 77-A of 1976 and the judgment-debtor is the first defendant. As far as the first defendant is concerned, since Shakuntala also died pending suit, the decree as against the judgment-debtor in that suit No. 77-A/76 has become final and no legal representative of her came on record and the suit No. 121A/84 got abated.
3. The question that arises is whether the appeal could be filed against dead person, namely, the first respondent? When it was brought to the notice of the learned counsel, an application came to be filed to delete the name of the first defendant. It was accordingly deleted. The consequence is that as regards the first defendant/judgment-debtor in the above suit No. 77-A/76 the decree has become final. Equally decree of dismissal in suit No. 121-A of 1984 also become final.
4. The question then arises : whether the legality of the decree against the second defendant, decree-holder in suit No. 77-A/76, can be gone into? In view of the fact that the plea of fraud has been pleaded as against the first defendant and the second defendant, to avoid the decree in suit No. 77-A/76, necessarily any findidng that would be given by the High Court in the appeal arising out of suit No. 121-A/1984 would be inconsistent qua the first respondent. Under those circumstances, the suit No. 121-A/84 as a whole stands abated. (As a consequence) the high court rightly has dismissed the appeal.
5. Shri Bagga, learned counsel for the petitioner, contended that by operation of Order 22, Rule 4(4), CPC as amended by CPC Amendment Act, 1976, it is not necessary that suit should abate as a whole. We find no force in the contention. It is true that under the amended rules even a counsel can give notice of the death of the parties and on the basis thereof, the legal representatives could be brought on record. But when the factum of the death of Shakuntala was brought to the notice of the counsel for the petitioner, an application came to be filed to delete the name of the first defendant from the array of the parties and accordingly it was allowed; consequence being that the decree as against the first defendant in O.S. No. 121-A/1984 had become final. Since it has become final, the decree as against the second defendant s legal representative would became inconsistent with the decree as against the first defendant. Therefore, the mere fact that the
