Joint representation by surviving defendants suffices to prevent abatement of a suit when one defendant dies, as long as the estate is substantially represented.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr A C Sarma, the learned Senior Counsel appearing on behalf of the petitioner, assisted by Mr G Bharadwaj and Mr P Bhowmick, the learned counsel appearing on behalf of the respondents.

2. The revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”), has been invoked to challenge the order dated 20.08.2022, passed by the learned Court of the Munsiff No. 2, Goalpara (‘the learned Executing Court’), in Misc (Ex) No. 38 of 2018, whereby an application under Section 47 of the Code, filed by the respondents herein, was allowed, holding, inter alia, that the execution proceedings could not be maintained, inasmuch, as the Judgment and Decree dated 29.11.2001, in Title Suit No. 45 of 1973, was passed against the defendant, who was already dead on 25.06.2000.

3. This Court has duly taken note of the submission made by Mr A C Sarma, the learned Senior Counsel to the effect that, although the defendant Md Abdul Hai had expired on 25.06.2000, but then also his estate was duly represented by his wife, who was the defendant No. 1 (i), and as such, the impugned order requires to be interfered with. In that regard, the learned Senior Counsel referred to the Judgment of the Supreme Court in the case of Shiv Shankara & Another –Vs- H P Vedavyasa Char; reported in (2023) 13 SCC 1 , wherein the Supreme Court observed that non-substitution of the legal representatives, on the death of one or several defendants would not lead to abatement of the suit, if the estate/interest was fully or substantially represented jointly by other defendants. He submitted that the Defendant No. 1 (i) was the wife of Late Abdul Hai and she represented the estate of Late Abdul Hai upon his death. This aspect was not taken into consideration by the learned Executing Court. The learned Senior Counsel further submitted that the counsel, who was representing the Defendants in the suit though appeared but did not inform the Learned Trial Court as regards the death of the Defendant No. 1.

4. Mr P Bhowmick, the learned counsel appearing on behalf of the respondents, submitted that a perusal of the application so filed, which is enclosed as Annexure-5 to the instant application, would show that the defendant No. 1, Abdul Hai, not only had his wife, but 6 (six) other legal representatives. The learned counsel submitted that the Supreme Court in the case of Vijay A. Mittal –Vs- Kulwant Rai , reported in (2019) 3 SCC 520, as well as the subsequent judgment, observed that substitution of all the legal heirs of the deceased defendant is not required, when out of all the legal representatives, or majority of them are already there on record. He, therefore, submitted that in the instant case, merely because, the wife of the defendant No. 1 was impleaded as the defendant No. 1 (i), but as majority of the legal representatives were not there on record, the decree so passed, in so far, as the defendant No. 1 or his legal representatives, cannot be proceeded with.

5. This Court has duly considered the submissions made by the learned counsel appearing on behalf of the parties and have also perused the materials on record. The records of Title Suit No. 45/1978 have also been perused.

6. A perusal of the records of Title Suit No. 45/1973 would show that the Petitioner herein, filed the suit initially against Md Abdul Hai, who was the sole principal defendant and one Md Islam Sheikh, who was the proforma Defendant. The said suit was filed seeking, inter alia, a decree for declaration of the title of t