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2018 Supreme(Pat) 1501
IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Parth Kumar Yadav – Appellant
Versus
Ram Nath Prasad – Respondent
Civil Review No. 105 of 2016 with Civil Review No. 109 of 2016
Decided On : 22-06-2018
For the Appellant :Mr. Shashi Shekhar Dwivedi, Sr. Advocate, Mr. Ranjan Kumar Dubey, Mr. Parth Gaurav and Mr. Mithilesh Kumar Upadhyay, Advocates
The main legal point established in the judgment is that the death of a party during the pendency of an appeal does not necessarily invalidate the judgment or decree, and the legal representatives must take appropriate steps to continue the proceedings.
Headnote:
Review Applications - Civil Procedure - Code of Civil Procedure, 1908 - Order 41, Rule 11 - Order 47, Rule 1(1) - [Summary of Acts and Sections]
Fact of the Case:
The case involved review applications arising from the same Title Suit, where the appellant had died, and the petitioners sought review of the orders on the grounds that the judgment and decree passed against the deceased appellant were nullities.
Finding of the Court:
The Court found that even if the appellant had died, no ground for review of the judgment/order was made out, and the review applications were dismissed. The Court also strongly deprecated the conduct of the petitioners, stating that the filing of the review applications was an attempt to obstruct the execution proceeding of the final decree and an abuse of the process of the Court.
Issues: The main issue was whether the judgment and decree passed against the deceased appellant were nullities and whether the review applications were valid.
Ratio Decidendi: The Court held that even if the appellant had died, no ground for review of the judgment/order was made out, and the decree passed by the first appellate court had acquired finality. The Court also emphasized the consequences of abatement and the legal principles related to the death of a party during the pendency of an appeal.
Final Decision: The review applications were dismissed, and the Court strongly deprecated the conduct of the petitioners.
Chakradhari Sharan Singh, J.
Since both the review applications arise out of the same Title Suit No. 109 of 1981/25 of 1990 which had given rise to S.A. No. 126 of 2002 and S.A. No. 159 of 2002, they have been taken up and heard together and are being disposed of by the present common judgment and order.
2. I have heard Mr. Shashi Shekhar Dwivedi, learned Senior Counsel, appearing on behalf of the petitioners in both the cases, assisted by Mr. Ranjan Kumar Dubey, Mr. Parth Gaurav, and Mr. Mithilesh Kumar Upadhyay, learned Advocates.
3. S.A. No. 126 of 2002 filed by Satya Narayan Sharma was dismissed by this Court under Order 41, Rule 11 of the Code of Civil Procedure,1908 (hereinafter referred to as 'the Code') by a judgment and order of this Court dated 04.03.2010, holding that the appeal did not involve any substantial question of law. S.A. No. 159 of 2002 preferred by the same appellant, came to be finally dismissed by an order dated 05.03.2010 due to noncompliance of the specific and peremptory order of this Court dated 12.01.2005. These are to two orders under review in the present proceedings.
4. It is being asserted in the present civil review applications that Satya Narayan Sharma died issue less on 09.01.2008, leaving behind his widow Chano Devi, who was impleaded in the final decree proceeding in place of her husband, who also died on 19.01.2010. The sole ground on which the petitioners seek review of the orders of this Court dated 04.03.2010, passed in S.A. No. 126 of 2002 and 05.03.2010 in S.A. No. 159 of 2002 is that the factum of the death of the sole appellant was not brought to this Court's notice and, therefore, the judgment and decree having been passed against the dead person, is a nullity.
5. Before I consider the grounds for review taken on behalf of the petitioners of these applications, I must take note of certain facts which are evident from the judgment and order of this Court dated 04.03.2010 passed in S.A. No. 126 of 2002 and the assertions made in the applications seeking review.
6. Title Suit No. 109 of 1981/25 of 1990 was filed by respondent nos. 1 and 2 for declaration of their title over the Schedule III property of the plaint, on the basis of the sale deeds or, in the alternative, allow partition of 5/6th share out of ^rd share in Schedule I property and other ancillary reliefs. The suit was decreed, on contest, against the appellant, Satya Narayan Sharma by learned Subordinate Judge-V, Chapra, vide his judgment and decree dated 12.04.1991. Appellant/Defendant no. 1 filed title appeal against the judgment and preliminary decree of the learned trial court, giving rise to Title Appeal No. 67 of 1992 which was dismissed by the learned Additional District Judge-VI, Saran, vide his judgment and decree dated 04.03.2002. Aggrieved by the said judgment and preliminary decree of the courts below, Satya Narayan Sharma preferred second appeal before this Court giving rise to S.A. No. 126 of 2002. Based on the preliminary decree, a final decree was prepared, vide order dated 30.06.1995 and the decree dated 04.09.1995 passed by the learned 5th Subordinate Judge, Saran, which was assailed by the said Satya Narayan Sharma by filing Title Appeal No. 61 of 1995, which also came to be dismissed by a judgment dated 16.03.2002, passed by learned 6th Additional District and Sessions Judge, Chapra. The aforesaid judgment dated 16.03.2002 passed in Title Appeal No. 61 of 1995 was assailed by Satya Narayan Sharma by filing S.A. No. 159 of 2002. Apparently thus, where as S.A. No. 126 of 2002 arises out of the preliminary decree passed in Title Suit No. 109 of 1991, whereas S.A. No. 159 of 2002 arises out of the final decree, emanating from the same suit.
7. Assailing the judgment and preliminary decree in S.A. No. 126 of 2002, the appellant Satya Narayan Sharma asserted that the S.A. No. 126 of 2002 involved the following substantial questions of law:-
"1. Whether the appellate court's findings regarding the points r
