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PETITIONER: SATGURU SHARAN SHRIVASTAVA

       Vs.

RESPONDENT: DWARKA PRASAD MATHUR [DEAD] THROUGH LRS. A ORS.

DATE OF JUDGMENT:       14/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION:  JT 1996 (7)   460        1996 SCALE  (6)189

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Mr.  Sushil   Mr.  Jain,   Advocate  takes  notice  for respondents.      This special  leave petition  arises from  the judgment and order of the High Court of Madhya Pradesh, Gwalior Bench made on  May 15, 1996 in First Appeal No.17/89. The admitted position is  that one  Dwaraka Prasad Mathur was a member of the  Secretarial  Staff  Housing  Cooperative  Society  Plot No.14-C was  allotted to  him as a member and thereon he had constructed a  house. It  is the case of the petitioner that he had  entered into  an oral  agreement of sale with him to purchase the  house for  a consideration of Rs.20000/subject to his obtaining permission for transfer from the Society as per the  law. It  is his case that he had paid up the amount due from  Dwaraka Prasad  Mathur to  the Society  and became member of  the Society  as per  the resolution passed by the Society. But  before he  got the possession, surprise pruned upon him  in the  form of  a decree  of specific performance obtained by the second respondent Narvedeshwar Prasad Saxena in O.S.No.77-A  of 1976,  dated October 11,1976. So he filed civil suit  No.121-A of  1984 on  the  plea  that  both  the respondents had played fraud upon him and it was a collusive decree and sought to avoid the decree passed in suit No.77-A of  1976   (suit  No.121-A   of  1984  of  the  petitioner). Admittedly pending  suit both the defendants died. As far as the first  defendant is  concerned, his widow Shakuntala was brought on  record as  his legal  representative. As regards the second  defendant, Prakash  Chand Saxena,  his  son  was brought on  record as legal representative. He is the decree holder in  the above  suit No.77-A of 1976 and the judgment- debtor is the first defendant. As far as the first defendant is concerned,  since Shakuntala  also died pending suit, the decree as  against the  judgment-debtor in  that suit No.77- A/76 has  become final  and no  legal representative  of her came on record and the suit No.121A/84 got abated.      The question that arises is whether the appeal could be

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filed against  dead person,  namely, the  first  respondent? When it was brought to the notice of the learned counsel, an application came to be filed to delete the name of the first defendant. It  was accordingly  deleted. The  consequence is that as  regards the  first defendant/judgment-debtor in the above suit  No.77-A/76 the  decree has become final. Equally decree of  dismissal in  suit No.121-A  of 1984  also become final.      The question  then arises:  whether the legality of the decree against  the second  defendant, decree-holder in suit No.77-A/76, can  be gone  into? In view of the fact that the plea  of  fraud  has  been  pleaded  as  against  the  first defendant and  the second  defendant, to avoid the decree in suit No.77-A/76, necessarily any finding that would be given by the  High  Court  in  the  appeal  arising  out  of  suit No.121A/1984 would be inconsistent qua the first respondent. Under those  circumstances, the  suit No.121-A/84 as a whole stands abated. (As a consequence) the high court rightly has dismissed the appeal.      Shri  Bagga,   learned  counsel   for  the  petitioner, contended that  by operation  of Order 22, Rule 4(4), CPC as amended by CPC Amendment Act. 1976, it is not necessary that suit should  abate as  a whole.  We find  no  force  in  the contention. It  is true  that under the amended rules even a counsel can  give notice  of the death of the parties and on the  basis  thereof,  the  legal  representatives  could  be brought on  record. But  when the  factum of  the  death  of Shakuntala was  brought to the notice of the counsel for the petitioner, an  application came  to be  filed to delete the name of  the first  defendant from  the array of the parties and accordingly  it was  allowed; consequence being that the decree as  against the first defendant in O.S. No.121-A/1984 had become  final. Since  it has become final, the decree as against the  second defendant’s  legal representative  would became inconsistent  with the  decree as  against the  first defendant. Therefore,  the mere  fact that  the  application came to  be filed  later is  of no  avail and Order 22, Rule 4(4), CPC  is clearly  inapplicable to  the facts.  In  this view, it  would be unnecessary for the High Court to go into the merits  in the appeal and to record any findings in that behalf .      The special leave petition is accordingly dismissed.