Laxman (Since Deceased) Through His Lrs. Vs. Ram Chandra (Since Deceased) Through His Lrs. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/769909
SubjectCivil
CourtRajasthan High Court
Decided OnAug-13-2009
Judge Dalip Singh, J.
Reported in2009(3)WLN599
AppellantLaxman (Since Deceased) Through His Lrs.
RespondentRam Chandra (Since Deceased) Through His Lrs. and ors.
DispositionPetition allowed
Cases ReferredLachhman v. Ramchandra and Ors.
Excerpt:
civil procedure code, 1908 - order 22 rule 3--abatement of suit--suit for partition--a suit for partition does not abate under order 22 rule 3 cpc for failure to substitute legal hairs of deceased plaintiff after passing of preliminary decree. - - on account of the respondents' failure to file an application within the period of 90 days'.9. the learned judges of the division bench of this court took note of the decision of their lordships of the privy council in lacchmi narain v.dalip singh, j.1. heard learned counsel for the parties.2. the petitioner in this writ petition has challenged the order dt. 11.02.2004 by which the final decree proceedings in a suit for partition were dismissed as having abated by the learned civil judge (junior division), rajgarh.3. learned counsel for the petitioner submitted that the preliminary decree was passed on 04.11.1989 and it was upheld by the learned appellate court by judgment and decree dt. 17.05.1997 in which the shares of the parties were determined as per the decree. the plaintiff moved the learned trial court for preparation of the final decree and the same came to be passed by the learned trial court on 29.08.1997.4. an application for preparation of final decree was instituted by the plaintiff and during the pendency of the same, the plaintiff died on 15.07.2000. in the meantime, the second appeal before the high court against the preliminary decree which was pending was dismissed vide judgment dt. 11.02.2004. the legal representatives of the plaintiff filed the present application for substitution on 26.07.2004 in misc. case no. 27 of 1997.5. an objection was raised that the application for substitution has not been filed within the prescribed period of limitation and hence, the final decree proceeded stood abated.6. the learned court below was of the opinion that the provisions of order 22 c.p.c. were applicable and since the application for substitution had not been filed within the prescribe period of limitation, the final decree proceedings stood abated. it is against the aforesaid order dt. 10.03.2006 dismissing the application that this writ petition has been filed.7. learned counsel for the petitioner submitted on the basis of the division bench judgment of this court in the case of pooranchand and ors. v. shriram and ors. reported in : air 1963 rajasthan 245 that there is no abatement of final decree proceedings. in the case of pooranchand, which was decided by the division bench of this court, the original plaintiff-decree holder died during the pendency of appeal arising from the final decree. the question arose whether the provisions of order 22 rule 3 and 4 c.p.c. apply to the final decree proceedings. in paras 8 and 9 of the said report, the question that was considered was that the application had been filed after the period of 90 days and that the appeal had already abated as no application had been filed for setting aside the abatement under order 22 rule 9 c.p.c. and, therefore, the appeal should have been dismissed.8. to the aforesaid contention, the respondent in pooranchand's case (supra) submitted that preliminary decree had already been passed by the court on 10.12.1956 and that the plaintiff had died on 19.02.1959 after the preliminary decree was passed and, therefore, the question of abatement did not arise. as would be seen from para 9 of the said report, the question which was considered by the division bench was 'whether the suit abated under order 22 rule 3 c.p.c. on account of the respondents' failure to file an application within the period of 90 days'.9. the learned judges of the division bench of this court took note of the decision of their lordships of the privy council in lacchmi narain v. balmakund reported in air 1924 pc 198 wherein it was held as under :order 22 rules 3 and 4 did not apply to cases of death after the passing of preliminary decree.10. taking note of the aforesaid, learned judges of the division bench of this court held as follows:this view does not appear to have been changed by that court, since no decision of that court to the contrary has been referred to us.11. the learned judges of the division bench of this court also noted that simiar view has been taken by the bombay high court in the case of dawarali jafarali v. bai jadi reported in air 1940 bom. 318 wherein it was held as follows:.he having obtained a preliminary decree, it was no longer open to him to file another suit on the same cause of action. after the preliminary decree was passed in his favour, the right to sue did not survive and so the language of order 22 rule 3 could not apply in terms. 12. after agreeing with the above the learned judges of the division bench went on to add as follows:we respectfully agree with the view taken by the learned judges of the bombay high court in dawarali jafarali saiyad's case air 1940 bom 318. it may be pointed out that the same view has been consistently held by the learned judges of the patna high court in the following cases:shanti devi v. khodi prasad singh : air 1942 pat 340; raghunandan sahu v. badri pandey : air 1945 pat 380. the same view has been followed by the learned judges of the nagpur high court in eknath ramjiwanji v. hanmantram raghunath 0065/1946 : air 1947 nag 75 and by the calcutta high court in tara pada ray v. shyama pada ray : air 1952 cal 579. 13. having considered the catena of judgments that were cited before the learned division bench, the learned division bench proceed to answer the aforesaid question as follows:thus from whichever angle the argument of the appellants be judged, there seems no force to be found therein.(para 10 of the report)14. thus, the division bench of this court decided that the provisions of order 22 rule 3 did not apply to the cases of death after the passing of preliminary decree as in this case.15. the learned counsel for the non-petitioner has not been able to show any law contrary to the above proposition as held by the division bench of this court in pooranchand's case.16. therefore, in view of the aforesaid, the impugned order is hereby set aside and the writ petition is allowed. the matter is remanded to the learned civil judge (junior division), rajgarh, alwar with direction to restore the civil misc. case no. 27/1997 [lachhman v. ramchandra and ors.] and proceed with the same in accordance with law.
Judgment:

Dalip Singh, J.

1. Heard learned Counsel for the parties.

2. The petitioner in this writ petition has challenged the order dt. 11.02.2004 by which the final decree proceedings in a suit for partition were dismissed as having abated by the learned Civil Judge (Junior Division), Rajgarh.

3. Learned Counsel for the petitioner submitted that the preliminary decree was passed on 04.11.1989 and it was upheld by the learned appellate Court by judgment and decree dt. 17.05.1997 in which the shares of the parties were determined as per the decree. The plaintiff moved the learned trial Court for preparation of the final decree and the same came to be passed by the learned trial Court on 29.08.1997.

4. An application for preparation of final decree was instituted by the plaintiff and during the pendency of the same, the plaintiff died on 15.07.2000. In the meantime, the second appeal before the High Court against the preliminary decree which was pending was dismissed vide judgment dt. 11.02.2004. The legal representatives of the plaintiff filed the present application for substitution on 26.07.2004 in Misc. Case No. 27 of 1997.

5. An objection was raised that the application for substitution has not been filed within the prescribed period of limitation and hence, the final decree proceeded stood abated.

6. The learned Court below was of the opinion that the provisions of Order 22 C.P.C. were applicable and since the application for substitution had not been filed within the prescribe period of limitation, the final decree proceedings stood abated. It is against the aforesaid order dt. 10.03.2006 dismissing the application that this writ petition has been filed.

7. Learned Counsel for the petitioner submitted on the basis of the Division Bench Judgment of this Court in the case of Pooranchand and Ors. v. Shriram and Ors. reported in : AIR 1963 Rajasthan 245 that there is no abatement of final decree proceedings. In the case of Pooranchand, which was decided by the Division Bench of this Court, the original plaintiff-decree holder died during the pendency of appeal arising from the final decree. The question arose whether the provisions of Order 22 Rule 3 and 4 C.P.C. apply to the final decree proceedings. In paras 8 and 9 of the said report, the question that was considered was that the application had been filed after the period of 90 days and that the appeal had already abated as no application had been filed for setting aside the abatement under Order 22 Rule 9 C.P.C. and, therefore, the appeal should have been dismissed.

8. To the aforesaid contention, the respondent in Pooranchand's case (supra) submitted that preliminary decree had already been passed by the Court on 10.12.1956 and that the plaintiff had died on 19.02.1959 after the preliminary decree was passed and, therefore, the question of abatement did not arise. As would be seen from para 9 of the said report, the question which was considered by the Division Bench was 'Whether the suit abated under Order 22 Rule 3 C.P.C. on account of the respondents' failure to file an application within the period of 90 days'.

9. The learned Judges of the Division Bench of this Court took note of the decision of their Lordships of the Privy Council in Lacchmi Narain v. Balmakund reported in AIR 1924 PC 198 wherein it was held as under :

Order 22 Rules 3 and 4 did not apply to cases of death after the passing of preliminary decree.

10. Taking note of the aforesaid, learned Judges of the Division Bench of this Court held as follows:

This view does not appear to have been changed by that Court, since no decision of that Court to the contrary has been referred to us.

11. The learned Judges of the Division Bench of this Court also noted that simiar view has been taken by the Bombay High Court in the case of Dawarali Jafarali v. Bai Jadi reported in AIR 1940 Bom. 318 wherein it was held as follows:.he having obtained a preliminary decree, it was no longer open to him to file another suit on the same cause of action. After the preliminary decree was passed in his favour, the right to sue did not survive and so the language of Order 22 Rule 3 could not apply in terms.

12. After agreeing with the above the learned Judges of the Division Bench went on to add as follows:

We respectfully agree with the view taken by the learned Judges of the Bombay High Court in Dawarali Jafarali Saiyad's case AIR 1940 Bom 318. It may be pointed out that the same view has been consistently held by the learned Judges of the Patna High Court in the following cases:Shanti Devi v. Khodi Prasad Singh : AIR 1942 Pat 340; Raghunandan Sahu v. Badri Pandey : AIR 1945 Pat 380. The same view has been followed by the learned Judges of the Nagpur High Court in Eknath Ramjiwanji v. Hanmantram Raghunath 0065/1946 : AIR 1947 Nag 75 and by the Calcutta High Court in Tara Pada Ray v. Shyama Pada Ray : AIR 1952 Cal 579.

13. Having considered the catena of judgments that were cited before the learned Division Bench, the learned Division Bench proceed to answer the aforesaid question as follows:

Thus from whichever angle the argument of the appellants be judged, there seems no force to be found therein.(Para 10 of the report)

14. Thus, the Division Bench of this Court decided that the provisions of Order 22 Rule 3 did not apply to the cases of death after the passing of preliminary decree as in this case.

15. The learned Counsel for the non-petitioner has not been able to show any law contrary to the above proposition as held by the Division Bench of this Court in Pooranchand's case.

16. Therefore, in view of the aforesaid, the impugned order is hereby set aside and the writ petition is allowed. The matter is remanded to the learned Civil Judge (Junior Division), Rajgarh, Alwar with direction to restore the Civil Misc. Case No. 27/1997 [Lachhman v. Ramchandra and Ors.] and proceed with the same in accordance with law.