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2007 Supreme(SC) 1083
2007(5) Supreme 895
Supreme Court of India
(From Bombay High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Ramdas Shivram Sattur — Petitioner
versus
Rameshchandra Popatlal Shah & Ors. — Respondent
Appeal (civil) 3807 of 2007
(Arising out of SLP (C) No.10085 of 2006)
Decided on : 20-08-2007
important point
A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement.
Headnote:(a)Code of Civil Procedure, 1908 – Order XXII, rule 9(2) – Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic, yet a prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement. (Para 12)
(b)Code of Civil Procedure, 1908 – Order XXII, rule 9(2) – Second appeal against respondents no. 3 and 5 dismissed for non-prosecution and non-removal of objections – High Court allowing restoration in respect of respondent no. 6 but not in respect of respondent no. 3 – Not justified – However, respondent no.3 being dead and her legal representatives being already on record; the appeal shall not abate so far as respondent No. 3 is concerned. (Para 13)
Facts of the case:
The suit plot was owned by one Shivram i.e. the father of the appellant and respondent no.3. Name of respondent no.3 Tarabai was shown as nominee in the Cooperative Housing Society’s record. After the death of Shivram the suit plot was transferred in the name of Tarabai. She purportedly entered into an agreement to sale with original plaintiffs 1 and 2 i.e. the present respondents 1 and 2. As Tarabai did not execute the sale deed in pursuance of the said sale agreement, the plaintiffs filed the suit against Tarabai and her three sons and one daughter i.e. original defendants 3 to 6. The Cooperative Society was also impleaded as defendant no.2. Tarabai filed written statement and denied claim of the plaintiffs. Defendant no.3 i.e. appellant denied the suit claim and contended that Tarabai was, as stated in the written statement, only a nominee and no exclusive ownership right was vested in her. The trial court came to the conclusion that Tarabai had executed the agreement of sale and she committed breach in collusion with the other defendants. Therefore, the defendants 1 and 3 were directed to execute the sale deed in favour of the plaintiff.
Being aggrieved by the said order, Tarabai as well as the present appellant and the Cooperative Society filed Civil Appeal which was dismissed and trial Court’s decree was confirmed. Being aggrieved, the appellant filed the Second Appeal against the original plaintiffs, Cooperative Society and the respondents 3 to 7 i.e. defendants 1 to 4, 5 and 6. The said appeal was admitted by the High Court on 20.6.1986 and stay on the lower court’s decree was granted.
The Additional Registrar dismissed the appeal in respect of Tarabai (respondent No.3 in the Second Appeal) and respondent no.6 for want of prosecution by order dated 20.3.1987. It also appears that the appeal was dismissed for non-removal of objections. An application for restoration was filed and the appeal was restored on 6.4.1999.
The prayer for restoration was resisted by the present respondents 1 and 2. The High Court allowed the application.
Findings of the Court:
High Court was not justified in refusing application for restoration so far as respondent no.3 is concerned.
Result : Appeal allowed.
- The Supreme Court of India decided the appeal on 20-08-2007, arising from a Bombay High Court second appeal. (!) (!)
- Challenge was to the Bombay High Court's order in a second appeal under Section 100 CPC, where an application under Order XLI Rule 19 CPC sought to set aside dismissal for non-prosecution against respondents 3 and 6, and to bring legal representatives of deceased respondent 3 on record. [1000411590001]
- Suit involved a plot owned by Shivram, father of appellant and respondent 3 (Tarabai, nominee in society records); after Shivram's death, plot transferred to Tarabai, who agreed to sell to plaintiffs (respondents 1 and 2) but did not execute sale deed, leading to suit against Tarabai, her children (defendants 3-6), and cooperative society. (!)
- Trial court held Tarabai executed agreement and breached in collusion, directing defendants 1 and 3 to execute sale deed; first appeal dismissed, confirming decree. (!) (!)
- Second appeal admitted on 20.6.1986 with stay; dismissed in default against respondent 3 (Tarabai) and 6 on 20.3.1987 for non-prosecution and non-removal of objections; later restored in part on 6.4.1999. (!) [1000411590003]
- Subsequent application for restoration against respondents 3 and 6 allowed for respondent 6 but refused for respondent 3 by High Court. [1000411590002][1000411590005]
- Appellant and respondents 5,6,7 are legal heirs of deceased respondent 3 (Tarabai); some already on record, and prior order noted them as such. [1000411590006][1000411590008][1000411590012]
- Abatement under Order XXII Rule 9(2) CPC is automatic for failure to bring legal representatives on record within limitation period, but a prayer to bring legal representatives on record, if allowed, sets aside the abatement. [judgement_act_referred]
- High Court not justified in refusing restoration for respondent 3, as she is deceased and her legal representatives (appellant and respondents 5,6,7) are already on record, so appeal does not abate against her. [1000411590012][judgement_act_referred]
- Appeal allowed, with no order as to costs. [1000411590013]
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Leave granted.
2.Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court in the Second Appeal filed by the appellant; the defendant no.3 in Special Civil Suit No. 42 of 1981; before the High Court under Section 100 of the Code of Civil Procedure, 1908 (in short CPC). During pendecny of the appeal, an application was filed in terms of Order XLI Rule 19 of the CPC for setting aside the order dated 20.3.1987 passed by the learned Additional Registrar whereby he dismissed the second appeal against respondent nos.3 and 6 for non-prosecution. The prayer was also made to show the names of the applicant i.e. present appellant and respondent nos.5 to 7 in the second appeal as legal representatives of the deceased-respondent No.3. By the impugned order the High Court while accepting the prayer vis-‘-vis respondent no.6 dismissed the same so far as respondent No.3 is concerned.
3.A brief reference to the factual aspects would be necessary :
“The suit plot was owned by one Shivram i.e. the father of the appellant and respondent no.3. Name of respondent no.3 Tarabai was shown as nominee in the Cooperative Housing Societys record. After the death of Shivram the suit plot was transferred in the name of Tarabai. She purportedly entered into an agreement to sale with original plaintiffs 1 and 2 i.e. the present respondents 1 and 2. As Tarabai did not execute the sale deed in pursuance of the said sale agreement, the plaintiffs filed the suit against Tarabai and her three sons and one daughter i.e. original defendants 3 to 6. The Cooperative Society was also impleaded as defendant no.2. Tarabai filed written statement and denied claim of the plaintiffs. Defendant no.3 i.e. appellant denied the suit claim and contended that Tarabai was, as stated in the written statement, only a nominee and no exclusive ownership right was vested in her. The trial court came to the conclusion that Tarabai had executed the agreement of sale and she committed breach in collusion with the other defendants. Therefore, the defendants 1 and 3 were directed to execute the sale deed in favour of the plaintiff.
Being aggrieved by the said order, Tarabai as well as the present appellant and the Cooperative Society filed Civil Appeal No.772 of 1984. However, the appeal was dismissed and trial Courts decree was confirmed. Being aggrieved, the appellant filed the Second Appeal against the original plaintiffs, Cooperative Society and the respondents 3 to 7 i.e. defendants 1 to 4, 5 and 6. The said appeal was admitted by the High Court on 20.6.1986 and stay on the lower courts decree was granted.
4.It appears from the record that respondents 1, 2 and 4 were served personally while respondent no.3 was served by affixing the notice with bailiff remarks gone on duty. Notice to the respondent no.6 was also returned unserved with remarks incomplete address. The High Court noticed that in terms of the provisions of Rule 6(id) of Chapter 7 of Bombay High Court Appeal Rules, 1960, the appellant was required to give postal stamps within the stipulated period. That was not done. The Additional Registrar dismissed the appeal in respect of Tarabai (respondent No.3 in the Second Appeal) and respondent no.6 for want of prosecution by order dated 20.3.1987. It also appears that the appeal was dismissed for non-removal of objections. An application for restoration was filed and the appeal was restored on 6.4.1999 by setting aside the order dated 10.11.1997. At that time the appellant made a statement that Second Appeal has abated against respondents 5 and 7 and he was pressing civil application for restoration only against respondent nos.1 and 2. It was accordingly restored.
5.Subsequently, it appears that the advocate who was earlier appearing left the practice. When another advocate appeared, she found that record was not traceable and ultimately an application was filed before the High Court in respect of respondents 3
