NARENDRA NATH TIWARI, J. - (1.) THIS civil revision arises out of an order dated 25.1.06 passed in Execution Case No. 4/04 by the Sub -Judge -III, Ranchi whereby the petitioner's objection under Section 47 C.P.C has been rejected.
(2.) THE facts out of which this civil revision arises are that one Bharati Devi (since deceased) and the opposite parties entered into an agreement dated 3.4.94 and a deed was executed and signed by the parties. The agreement was for sale of a land measuring an area of 6 Kathas 9 Chhataks of Plot No. 557/9 appertaining to Khata No. 205 of village Hinoo (Ranchi). The said land was the acquired property of Bharati Devi. Out of the agreed consideration amount of Rs. 1,80,000, Rs. 55,000 was paid by the opposite parties to Bharati Devi at the time of execution of the said agreement. Subsequently, in between 3.4.94 and 9.1.98 further amount to the tune of Rs. 1,70,000 on different dates was paid to Bharati Devi and balance Rs. 10,000 was to be paid at the time of execution and registration of the sale deed. As per the terms of the agreement, the deed was to be executed after -obtaining necessary permission from the Land Celling Officials by the venders. Possession of the land was given by Bharati Devi to the opposite parties who also constructed boundary wall on the said land. In the meanwhile, Bharati Devi died. The Opposite parties thereafter filed a suit being T.S. No. 170/01 praying a decree for specific performance of contract against the two sons of Bharati Devi, namely, Santosh Kumar Jaiswal and Kameshwar Narain Jaiswal. During the pendency of the said title suit, one of the defendants Kameshwar Narain Jaiswal died on 8.6.02 and thereafter his name was deleted by the order of the Court. Santosh Kumar Jaiswal (petitioner) had appeared in the suit by filing Vakalatnama. Though sufficient time was granted to him for filing his written statement, yet he did not file the same. The petitioner took steps after 22.2.04 and thereafter he did not take any step and did not contest the suit. The suit proceeded ex parte. Learned Sub -Judge decreed the suit for specific performance and directed the defendant -petitioner to execute the sale deed on accepting the balance consideration amount of Rs. 10,000 from the plaintiffs -opposite parties. The decree passed in the said title suit was sought to be executed in Execution Case No. 4/04. Notice to show cause was Issued to the Judgment debtor -petitioner who appeared and filed an objection under the purported provision of Section 47 of the C.P.C. In his objection the judgment debtor -petitioner contended that the decree was a nullity as the same was passed after the death of K.N. Jaiswal and since the legal heirs were not substituted. In his place, the suit was abated and the suit was also barred by limitation and the decree being null and void, the same can not be executed. By the impugned order, learned Court below has rejected the said objection of the judgment debtor -petitioner. Mr. K.K. Sahay, learned Counsel appearing on behalf of the petitioner submitted that K.N. Jaiswal was one of the defendants who died during the pendency of the suit on 8.6.02 and no step was taken for substitution of the heirs and legal representatives of the said defendant, rather his name was deleted from the cause title and the ex parte decree was passed dated 30.4.04. Under the provision of Order 22 Rule 9 C.P.C. the suit stood abated and the effect of abatement is virtually a decree which determines the rights between the parties and as a result of abatement the decree becomes final and the whole suit became Incompetent and stood dismissed. Such decree is not executable and the point of inexecutability of the decree on the ground of abatement of the suit can be raised before the Executing Court. Learned Counsel. In support of his said contention relied on a Full Bench decision of Patna High Court in Awadh Bihari Tewari and Anr. v. Sudarsan Ral and Ors. reported. In AIR1965 Pat 427. Learned Counsel further contended that no specific order is required as abatement takes place on its own force by passage of time and after lapse of the prescribed time for taking steps for substitution, the petition stood disposed of as being abated. Learned Counsel relied on a decision of the Supreme Court in Madan Naik (dead by LRs.) and Ors. v. Most. Hansubala Devi and Ors., reported in AIR 1983 SC 676 . Learned Counsel further submitted that the suit was filed against the two defendants and since K.N. Jaiswal died during the pendency of the suit and there was no substitution of his legal representatives, the suit stood abated and since there was indivisible claim against the Judgment debtor -petitioner, the suit abated as a whole. The decree subsequently passed against the judgment debtor -petitioner is nullity and the same is not executable. Learned Counsel further urged that the suit for specific performance was also barred by limitation and though the said objection was not taken by the defendant and he had not filed any written statement, but it was the duty of the Court to consider the same and to dismiss the suit in view of the provision under Section 3 of the Limitation Act, 1963. Learned Counsel submitted that in view of the said provision of law, learned Court below should have held the decree Inexecutable and should have dismissed the execution case, but learned Court below has erroneously rejected the petitioner's objection by the Impugned order which is wholly Illegal and is liable to be set aside.
(3.) MR . Manjul Prasad, learned Sr. counsel, appearing on behalf of the opposite parties, on the other hand, submitted that the order passed by learned Court below is well considered, sound and legal and there is no Infirmity in the said order. Learned Counsel submitted that the petitioner had appeared in the Court below, but did not choose to file his written statement and contest the suit. The petitioner was given adequate opportunity to raise the points and contest the suit, but he did not take any step when the suit was pending and they kept silence for several years and when the execution was levied by the decree holder -opposite parties, the petitioner has deliberately and maliciously filed the objection. Learned Counsel submitted that the grievance raised in the objection could have been raised before the Court trying the suit. Even on appeal, the same should have been raised, but having not done so, the petitioner is stopped from raising the said objection before the Executing Court. Learned Counsel submitted that the Executing Court cannot go behind the decree and cannot adjudicate the point of limitation, abatement etc. Learned Court below, however, dealt with such objection and has passed a well considered order. It has been submitted that the estate of the deceased was duly represented by the judgment debtor -petitioner. Admittedly, the petitioner was the son and the legal heir of the deceased Bharati Devi and his representation binds the estate of the deceased, even though some other Interested persons are not on record. It has been submitted that when the decree was passed, the defendant -petitioner was there and the name of K.N. Jaiswal was deleted earlier. Thus the decree was not passed against a dead person and the same is not a nullity rather the same is legal, valid and binding upon the petitioner. Learned Counsel submitted that no person claiming to be the heir and legal representative of K.N. Jaiswal has come in picture or has made any grievance that the estate of the deceased was not duly represented in his absence and since the petitioner was himself a party and having not contested the suit deliberately, he can not be allowed to say that there was no proper representation of the estate of the deceased and that the suit was abated for non -substitution. Learned Counsel relied on a decision of the Supreme Court in Babu Sukhram Singh v. Ram Dular Singh and Ors. Learned Counsel further submitted that the petitioner's objection that the suit was time barred is without any basis as the suit was filed within three years from the date of service of notice asking the defendant to perform his part which was not accepted. Since time was not the essence of the contract, the suit comes within the provision of Section 54 of the Indian Limitation Act, 1963 and the same was filed within three years from the date of refusal to perform the part of the contract by the defendants. Learned Counsel submitted that even a decree passed in a time barred suit is not a nullity rather it may be an illegality which can be rectified by preferring an appeal. In support of his said submission, learned Counsel referred to and relied on a decision of the Apex Court in Ittryavira Mathai v. Varkey Varkey and Anr. reported in [1964] 1 SCR 495. He submitted that the Executing Court cannot go behind the decree between the parties or their representatives and it has to take the decree according to Its tenor and until the decree is set aside by an appropriate Court in appeal or revision, even if the decree is erroneous, it is still binding upon the parties. Learned Counsel submitted that in the instant case at the execution stage the Executing Court can not go Into the questions as to whether there was any heir or legal representation or whether deletion of the name of K.N. Jaiswal was wrong and whether the defendant -petitioner had right to file a representation. The Court below has thoroughly discussed all the said points and has not found any valid ground in objection and has rightly rejected the same which was maliciously engineered to delay the execution of the decree.;