Decided on January 10,1955



Dixit, J. - (1.) THE present petition arises under the following circumstances. The present Petitioner Basanti Bai is the wife of the judgment debtor Rameshwardayal against whom a decree of Gordhandas, father of the non -applicant No. 1 was being executed in the Court below. In execution a certain house was attached. The Petitioner raised objection to the attachment of the property claiming that it belonged to her. The executing Court decided the objection in her favour. The decree -holder against that order, came to this Court in revision (C.R. 208 of 1952). This revision was filed on 4 -12 -1952 and was heard 'ex parte' on 15 -10 -53 as Basanti Bai, the non -applicant in that case, did not appear even after service. On that date orders were passed allowing the revision and directing the execution Court to rehear the arguments and to clarify the position whether the attached property was in possession of the wife of the judgment -debtor in her, own right or only as a trustee for the judgment -debtor. As the order passed by the Court below was ambiguous as regards the possession of the objector, the case was sent back for rehearing of the arguments and for disposal of the objections. When the case reached the execution Court Basanti Bal raised Anr. objection that Gordhandas had died on 3 -2 -1953 and therefore the order passed by the High Court in revision was null and void and the order should be ignored. This objection has been disallowed by the Court below and so Basanti Bai has come in revision to this Court and, on her behalf, Mr. Anand Bihari Mishra has also filed an application under Section 151, Code of Civil Procedure for setting aside the order dated 15 -10 -1953 passed by this Court in - 'Gordhandas v. Mahila Basanti Bai' Civil Revision No. 208 of 1952 (MB) (A).
(2.) NOW it is admitted that Gordhandas who belonged to Shivpuri District had died on 3 -2 -(1953.' Neither this Court nor the 'Vakil' engaged by Gordhandas was aware of his death and the arguments were heard in ignorance of that fact. The question arises whether the order dated 15 -10 -53 passed in Civil Revision No. 208 of 1952(A), Should be declared to be null and void? Mr. Anand Bihari Mishra places reliance on Amarsangji Indrasangji v. Desai Umed : AIR 1925 Bom 290 (B), and certain other rulings for the proposition that where the Appellant dies but 'the appeal is decreed in ignorance of his death the decree passed is a nullity. Mr. Motilal Gupta, however, places reliance on 'Totaram v. Kundan', AIR 1928 Lah 781(C), and urges 4hat a decree passed after the death of a party to the suit or appeal is not an absolute nullity nor is it open to collateral attack. In my opinion these rulings are not relevant inasmuch as there the question had arisen in appeals and here the question arises in revision before me which is governed by the provisions of Section 115 of Code of Civil Procedure. A revision is necessarily different from ah appeal. There is a mistake in thinking that the two are identical. The main question, therefore, is whether the principle recognised in Rule 3, Order 22 of the Code of 1908 is applicable to proceedings in revision? Mr. Anand Bihari Mishra relies on 'Ananda Moyi Dasi v. Rudra Mahanti' 21 Ind Cas 407 (Cal) (D), for the proposition that Order 22, Rule 3 applies also to proceedings in revision. The judgment though of a Division Bench of the Calcutta High Court does not discuss the provisions of Section 115 nor does it give any reason for the proposition that a rule cannot be issued at the instance of a person who had died at the time the application wa3 made and that a rule so issued is plainly a nullity. With great respect I must say that the judgment is a short and a summary one and does not satisfy me in the least.
(3.) A different view has however been taken in 'Baksho v. Piaro', AIR 1920 Sind 120(E), and in 'Naoo Mai v. Tarachand', AIR 1933 Sind 200(F). Mr. Motilal Gupta drew my attention to a recent Pakistan case 'Mohammad Saddat Ali v. Administrator Corporation of City of Lahore', AIR 1949 Lah 186(FB) (G), where all the relevant rulings have been elaborately discussed and analysed and where the Full Bench came to the conclusion that Order 22, Rule 3, Code of Civil Procedure is not applicable to revisions. The Full Bench further held that it cannot be read in conjunction with Section 141 as this section is so dratted as to enable a Court to apply the procedure in regard to suits to such proceedings as are in "pari materia with suits and thus original in character, and, that the procedure provided for suits would be mostly inapt land inappropriate to proceedings in revision. The Full Bench in this case therefore held that where a party going in revision dies pending the revision petition and an application is made by his legal representatives to be brought on record after the expiry of the period of 90 days the petition for revision cannot be dismissed on the ground of abatement.;

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