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HIGH COURT OF PATNA
A. K. Sinha, J.
ishaque Khan & others - Appellants
Versus
Jaubar Ali Khan & other - Respondents
Appeal from Appellate Decree No. 544 of 1973
Decided On : 2.12.1983
PARTITION SUIT - ABATEMENT - DEATH OF DEFENDANT AFTER PRELIMINARY DECREE - EFFECT - FINAL DECREE PASSED IN ABSENCE OF HEIRS OF DECEASED DEFENDANT - VALIDITY - CODE OF CIVIL PROCEDURE, 1908 - ORDER 22, RULES 3, 4, 10 AND 11.
Fact of the Case:
In a partition suit, some of the defendants died after the preliminary decree but before the final decree was passed. The final decree was prepared in the absence of the heirs of the deceased defendants. The question arose whether the final decree was a nullity or only voidable at the instance of the legal representatives of the deceased defendants.
Finding of the Court:
The court held that the final decree was a nullity. It relied on the provisions of Order 22, Rules 10 and 11 of the Code of Civil Procedure, 1908, which provide that if a plaintiff or defendant dies after the preliminary decree, his heirs and legal representatives can be brought on the record by the original court dealing with the proceedings for preparation of the final decree. The court also relied on the decision in Ramsewak Mishra and another v. Mt. Deorati Kuer and others (AIR 1962 Patna 178), which held that the effect of non-substitution of the heir of one of the deceased plaintiffs before the final decree is to render the decree null and void.
Issues: Whether the final decree passed in the absence of the heirs of the deceased defendants was a nullity or only voidable at the instance of the legal representatives of the deceased defendants.
Ratio Decidendi: The court held that the final decree was a nullity because the heirs of the deceased defendants were not brought on the record before the preparation of the final decree, as required by Order 22, Rules 10 and 11 of the Code of Civil Procedure, 1908. The court also held that the decision in Jungli Lal and others v. Laddu Ram Marwari and another (AIR 1919 Patna 430 FB), which was relied on by the lower appellate court, was not applicable to the facts of the present case.
Final Decision: The appeal was allowed, the judgment and decree of the appellate court were set aside, and the case was sent back to the trial court for further proceedings.
Ashwini Kumar Sinha, J. -Some of the defendants (heirs of original defendant nos. 1 and 2) are the appellants in the present, second appeal. This appeal is against the final decree passed in Partition Suit No.3 of 1961. The question involved in this appeal though seems to be short and simple yet at the same time is a very interesting one. The question is whether absence of the heirs of Shakhawat Khan as also Kabir Khan, the original defendants, on the record after passing of the preliminary decree and before the preparation of the final decree rendered the final decree in question a nullity.
2. The learned counsel appearing for the defendants-appellants hall contended that the heirs of Shakhawat Khan and Kabir Khan (the original deferidant nos. 1 and 3) and Most. Nazo (one of the substituted heirs of original defendant no. 2 Baratu Khan) having not been brought on the record before the preparation of the final decree, the final decree was a nullity and has to be let, aside and the view of the appellate court, to the effect that the final decree having been pre-pared in presence of the appellant a and the appellants having participated in the preparation of the final decree could not be challenged by the appellants and it was only voidable at the instance of the legal representative of such defendants who died, after the passing of the preliminary decree, was wrong.
3. Admittedly Sheikhawat Khan (defendant No. 1), Kabir Khan (defendant no. 3) and Most. Nazo (one of, the substituted heirs of Baratu Khan (defendant no. 2) died after the preliminary decree and before the final decree was sealed and signed and it is also admitted that the final decree was prepared In absence of the heirs of these persons. So the question is whether the final decree, under such circumstance, was a nullity or only voidable at the instance of the legal representatives of the aforesaid deceased defendants.
4. It is well settled that there is no abatement On account of the death of a party after the preliminary decree as, the rights of the parties stand already determined by that decree. In view of such well established principle of law the provisions of Rules 3 and 4 of ORDER :22 of the Code of Civil Procedure (hereinafter referred to as 'the Code') have no application in case of death of a party after the preliminary decree and the case is governed by the provisions of Rule 10 of ORDER :22 of the Code. Reference be made to the Case of Babuie Shanti Devi v. Khodai Prasad Singh & others (AIR 1942 Patna 340) and to the case of Ram Sewak Mishra and another v. Mt. Deorati Kuer and others (AIR 1962 Patna 178).
5. If the Provisions contained in Rules 10 and 11 of ORDER :22 of the Code are read together, it makes it clear that if, in a suit (or partition one of the plaintiff dies after the preliminary decree, his heirs and legal representatives can be brought on the record by original court dealing with proceedings for preparation of the final decree and not by the appellate court before which appeal has been preferred against the final decree passed by the trial court. A substitution, therefore, can be made only by the trial court which passed the final decree and not by court sitting in appeal.
6. It is also well settled that the effect of non-substitution of the heir of one, of the deceased plaintiff before the fined decree is to render the decree null and void, as a decree either for or against a dead person is absolutely an ineffectual and invalid. Reference be made to the case of Ajoy Kumar Makhopadhaya v. Pushpabala Choudhury (AIR 1952 Assam 54) and the case of Ramsewak Mishra and another v. Mt. Deorati Kuer and others (AIR 1962 Patna 178).
7. It is also well settled that where after the preliminary decree in a partition suit one of the defendants dies and no step is taken by the plaintiff to bring the heirs of the deceased defendant on the record within time, the suit does not abate against the heirs of the deceased. In such a case the proper proc
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