The main legal point established in the judgment is the principle of abatement under Order 22 Rule 4 of the Civil Procedure Code, leading to inconsistent and inexecutable decrees when legal heirs of a deceased party are not brought on record.

JUDGMENT :

M.S. JAWALKAR, J.

1. Heard.

2. Present appeal is filed being aggrieved by judgment and decree dated 10/04/2007 passed by Ad-hoc District Judge-1, in R.C.A. No. 500/2005, whereby, the judgment and decree dated 2/9/2005 passed by the 2nd Additional Judge, Small Causes Court and Joint Civil Judge (S.D.) Nagpur in Spl. C.S. No. 749/2002 is reversed and the suit of plaintiff/appellant is dismissed.

3. This Court vide order dated 27/02/2008 framed the following substantial question of law while admitting the appeal:

“Whether death of appellant/defendant No. 2 Suresh Govindrao Wanjari prior to filing of Regular Civil Appeal No. 500 of 2005 and not bringing his legal heirs on record in the said appeal has resulted into bringing into existence two inconsistent decrees?”

4. The appellant is original plaintiff and the respondents are original defendants.

5. The brief facts of the case can be summarized as under:

On 01/06/1999, Smt. Kantabai Pandurang Wanjari executed the registered ‘Will Deed’ bequeathing the house property mentioned therein, in favour of the plaintiff/appellant. Smt. Kantabai expired on 12/09/2001. It is contended by the plaintiff/appellant that when the plaintiff/appellant was out of station, the defendants took forcible possession of Western side block on 22-23/06/2002. Therefore, the plaintiff filed a suit bearing Spl. Civil Suit No. 749/2002 before learned 2nd Addl. Judge, Small Causes Court and Jt. Civil Judge, Senior Division, Nagpur on 28/08/2002 for declaration and possession. The suit was decreed on 02/09/2005. Thereafter, the defendants preferred appeal bearing R.C.A. No. 500/2005 before the learned Ad-hoc District Judge-1, Nagpur. On 10/04/2007, the said appeal had been allowed and the suit of the plaintiff/appellant had been dismissed. Being aggrieved by the same, the present Second Appeal is filed.

6. The death of respondent/defendant No. 2 came to the knowledge of the appellant when the notices issued to respondent No. 2 on Second Appeal received back un-served with the report that respondent No. 2 no more alive It appears that the respondent No. 2 has expired prior to filing of First Appeal. As such, the appeal was filed in the name of dead person and decree thereof had been passed in appeal filed by dead person.

7. The said defendant No. 2 has expired on 19/09/2005 whereas the appeal bearing R.C.A. No. 500/2005 is filed on 24/10/2005. The fact of death of defendant No. 2 (i.e. appellant no. 2 before First Appellate Court) was not disclosed by defendant No. 1 (i.e. appellant No. 1) or the legal heirs of defendant no. 1 and arrayed the name of defendant No. 2 as appellant No. 2. Thus, the legal heirs of appellant No. 2 (i.e. defendant No. 2) were not brought on record. The learned lower Appellate Court reversed the decree of learned Trial Court. As such, the appeal is abated and there are two inconsistent decrees. The learned Trial Court had directed the defendant Nos. 1 and 2 to hand over the possession.

8. The learned Counsel for the appellant drawn my attention to the operative order passed by learned Trial Court whereby defendant Nos. 1 and 2 are directed to deliver the vacant possession of the suit property mentioned in Schedule ‘A’ of the plaint to the plaintiff. As such, the decree was inseparable against both the defendants whereas the learned lower Appellate Court dismissed the suit by allowing the appeal but the appellants (original defendants) have not brought the legal heirs of appellant No. 2 (original defendant no. 2) on record who appears to be died before filing of the appeal. As such, the appeal was filed in the name of dead person and also the decree had been passed in appeal filed by the dead person. In view of this, decree passed by learned Trial Court to the extent of defendant No. 2 is final.

9. The learned Counsel for the appellant relied on following authorities/citations:

(1) Sheela Wd/o Vijay Choudhari and Others vs. Central Bank of India and Others, 1998 (1) Mh. L.J. 928

(2) Venigal