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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, J.
Nirmala Devi W/o Sri Rajkumar Singh - Appellant
Versus
Prasidh Narayan Singh S/o Late Sita Ram Singh - Respondent
W.P (C) No. 2672 of 2018
Decided on : 26-06-2019
Code of Civil Procedure - Section 47 - Constitution of India - Article 227 - Trial court – Acquisition of Land - Sufficient and satisfactory evidence to prove - Survey knowing Pleader Commissioner - Learned counsel for petitioner has assailed aforesaid order on ground that since defendant has died on while preliminary decree was passed therefore having not been substituted by his legal heir suit will abate and if in absence of legal heir of defendant preliminary decree has been passed and consequently final decree same would be nullity in eye of law on ground that decree/judgment passed against dead person will be nullity in eye of law but having not considered so executing court is now proceeding for execution of decree passed by trial court and therefore rejection of petition filed under Section 47 of Code of Civil Procedure is absolutely improper and illegal - It is for reason that suit shall abated and if decree would be executed legal heir of defendant would be said to suffer from violation of principle of natural justice - Trial court having not considered aforesaid aspect of matter and rejected said petition, holding scope of Section 47 of Code of Civil Procedure which is impugned in this writ petition in exercise of power conferred under Article 227 of Constitution of India – Held, As has been held by Apex Court so far as applicability of Section 47 of Code of Civil Procedure same is to be exercised by executing court for executing decree which is binding upon parties having a microscopic jurisdiction and the executing court is supposed to execute decree as per tenure of decree however question of nullity of a decree if passed against a dead person can also be considered but subject to condition as has been held by Apex Court reported - Trial court after looking to aforesaid aspect of matter and discussing scope of Section 47 of Code has come to conclusion/finding that case as has been made out under Section 47 of Code is not to be exercised - This Court is also in agreement with finding considering aforesaid aspect of matter as also gathering fact that petition under Section 47 is nothing but to circumvent decree passed by trial court otherwise petitioner would have approached appropriate court of law at relevant time since herein legal heirs of the deceased-defendant namely has filed partition appeal in which was dismissed and thereafter allowed the trial court to proceed by appointing Commissioner, who has submitted its report but no objection has been filed and thereafter sat idle and after lapse of after nine years the petition under Section 47 has been filed by other legal representative of said therefore, plea of declaring the decree as nullity passed against cannot be said to be proper - In view of said factual aspect, the question of nullity of decree against late cannot be said to be a nullity in eye o law - It is for two reasons namely hat decree would be said to be nullity as has been held by Apex Court in decision reported in wherein inference can be drawn as to the abandonment of such a plea of abatement unless there is clear sufficient and satisfactory evidence to prove that legal representative of the deceased-respondent was aware of it and abandoned it willfully, therefore said ratio is applicable herein also in facts and circumstances as because the legal heirs of the defendant no.2 namely were aware of it and abandoned it willfully and as such the decree will not be said to nullity so far as it relates against late – Petition dismissed
This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 27.03.2018 passed by Civil Judge (Sr. Division) I, Palamau, at Daltonganj in Misc. Case No.02 of 2014 (arising out of Execution Case No.03 of 2009) and Partition Suit No.21 of 2001, whereby and whereudner the petition filed under Section 47 of the Code of Civil Procedure on the ground that executing court cannot go behind decree of the parties and representative and cannot entertain any objection that the decree was incorrect in law or fact until it was set aside in appropriate proceeding in appeal or revision.
2. The brief facts of the case of the petitioners is that when one partition suit being Partition Suit No.21 of 2001 was filed for passing a preliminary decree in favour of the plaintiff in respect of their half share jointly with respect to the said land as described in Schedule-A and B of the plaint, through a Batwara Commissioner and a separate takhta be carved out in favour of the plaintiff with respect to their half shares out of suit/land as mentioned in Scheule-A and B appended to the plaint. The suit was filed against Dudheshwar Singh, Ballkeshwar Singh, Nand Kishore Singh, Munia Devi and Sukhali Devi for preliminary decree of half shares jointly with respect of suit land. During pendency of the Partition Suit No.21 of 2001 Rampati Mahto died and his legal heirs were substituted. Nand Kishore Singh had also died and his legal heirs were substituted. On being noticed defendant nos.1 to 3 appeared in suit but did not filed written statement. Defendant Nos.4 and 5 did not appear.
A decree was passed in the said suit ex-parte against the defendants vide judgment dated 26.03.2004 wherein the plaintiff and defendants have been held to be entitled for half share each in the suit property and directed to prepare preliminary decree.
The plaintiffs had filed petition under Order XXVI Rule 13 of the Code of Civil Procedure on 27.05.2004 praying therein to appoint Survey knowing Pleader Commissioner for carving out Takhta as per the preliminary decree and as such the Pleader Commissioner has submitted report on 05.03.2005 and thereafter the final decree was prepared on 09.05.2007. Subsequently an execution case for execution of final decree dated 09.05.2007 for executing the said decree, which was registered as Execution Case No.03 of 2009.
3. It is the case of the petitioner that defendant no.2, Balkeshwar Singh had died on 03.10.2003 but his legal heirs were not substituted in the preliminary decree (sealed and signed on 06.04.2004) and as such preliminary decree as well as final decree since has been passed against the dead person, is nullity in the eye of law.
A petition has been filed by the petitioner under Section 47 of the Code of Civil Procedure for not executing the decree passed in Partition Suit No.21 of 2001 since the defendant no.2 has died before passing of the preliminary decree and therefore, the decree being nullity in the eye of law, the same cannot be executed so far as it relates to the legal heirs of defendant no.3 is concerned, it is for the reason that the suit shall be abated and if the decree would be executed the legal heir of defendant no.2 would be said to suffer from violation of principle of natural justice. The trial court having not considered the aforesaid aspect of the matter and rejected the said petition, holding the scope of Section 47 of the Code of Civil Procedure, which is impugned in this writ petition in exercise of power conferred under Article 227 of the Constitution of India.
4. Learned counsel for the petitioner has assailed the aforesaid order on the ground that since the defendant no.2 has died on 03.10.2003 while the preliminary decree was passed on 26.03.2004, therefore, he having not been substituted by his legal heir, the suit will abate and if in absence of the legal heir of defendant no.2 preliminary decree has been passed and consequently the final decree, t
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