1 WP 924/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 924 OF 2010 Smt. Zubeda Chand Shaikh & Anr. .. Petitioners V/s Amirbi Trust through its Trustee Smt. Halimunnisa Kasim Shaikh & Ors. .. Respondents Mr. G.S. Godbole i/b Ms. P.N. Dabholkar for the petitioners. CORAM : D.G. KARNIK, J. DATE : 30TH JUNE 2010 ORAL ORDER: 1. None present for the respondents though served. Heard learned counsel for the petitioners. 2. By this petition, the petitioners challenge the order dated 16 January 2010 passed by the learned 3rd Joint Civil Judge, Junior Division, Nasik rejecting the petitioners’ application at Exhibit­14 in Regular Darkhast No.94 of 2004 made purportedly under Order 21 Rule 97 of the Code of Civil Procedure (for short “the Code”). 3. Respondent no.1 is the owner and landlord of a residential 2 WP 924/10 block forming part of municipal house no.2562 at Nasik (for short “the suit premises”). One Shaikh Chand Shaikh Ismail (hereinafter referred to as “the original tenant”) was in occupation of the suit premises as a tenant of respondent no.1. Respondent no.1 and 2 filed a suit bearing, Regular Civil Suit No.769 of 1988 against the original tenant for possession on the ground of default in payment of rent. During the pendency of the suit, the original tenant died. His son and daughter (respondent nos.3(i) and 3(ii) herein) were brought on record as his heirs. They contested the suit. After recording the evidence and hearing the parties, the Trial Court dismissed the suit by an order dated 21 June 1995. The respondent nos.1 and 2 being the landlord filed an appeal in the District Court being Appeal No. 40 of 1996. The appeal was allowed and a decree for possession was passed by the appellate court. Execution petition bearing Regular Darkhast No.94 of 2004, was thereafter filed by the respondent nos.1 and 2 against the respondent nos.3(i) and 3(ii) for execution of the decree. A notice was issued to them. Thereafter, the present petitioners who claim to be a widow and another son of the original tenant appeared before the executing court and made an application purporting to be an application under Order 21 Rule 97 of the Code. In the 3 WP 924/10 application, they pleaded that they were also residing with the original tenant at the time of his death and had inherited the tenancy under the provisions of section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Bombay Rent Act”). They further alleged that the respondent nos.3(i) and 3(ii) had colluded with the landlord and suffered a decree in collusion. They contended that the decree was obtained by fraud and, therefore, the decree was not executable against them. By that application, they prayed that the decree should be declared as nullity and they should not be evicted in pursuance of execution of the said decree. The respondent nos.1 and 2 resisted the application. They denied the allegations of fraud as also of collusion. They pleaded that the respondent nos.3(i) and 3(ii) were the legal heirs of the original tenant and on his death they were lawfully brought on record and the decree has been passed after hearing them. After hearing the parties, the executing court rejected the application of the petitioners. Aggrieved petitioners have petitioned this Court. 4. Mr. Godbole, learned counsel for the petitioners, raised the following points. 4 WP 924/10 (i) The original defendant had left behind him 4 heirs, viz. the petitioners and the respondent nos.3 (i) and 3 (ii). The respondent nos. 1 and 2 as landlords ought to have brought on record all the heirs of the deceased defendant, and since all the heirs were not brought on record, the decree was not binding on the other heirs. (ii) The decree was obtained by the respondent nos.1 and 2 (landlords) in collusion with respondent nos.3(i) and 3(ii) and, therefore the decree was not binding on the petitioners. (iii) The application made by the petitioners at Exhibit­14 in the execution petition praying that the decree was a nullity amounted to resistance or obstruction to the execution of the decree under Order 21 Rule 97 of the Code and, therefore, the executing court ought to have tried the application as a suit; the application could not have been heard and decided in a summary manner as was done by the executing court. Consequently, the impugned order was bad in law. 5 WP 924/10 5. As regards the first contention of Mr. Godbole, there appears to be some dispute between the parties as to whether the petitioners were residing with the original tenant at the time of his death. According to respondent nos.1 and 2, only the respondent nos.3(i) and 3(ii) being the son and daughter of the original defendant were residing with him at the time of his death and, therefore, they alone were brought on record by them bonafide believing them to be the only heirs and legal representatives of the deceased defendant. In my view, where a defendant dies after the institution of the suit and the plaintiff, after diligent and bonafide enquiry, impleads some but not all the heirs of the deceased as legal representatives, the heirs so impleaded represent the estate of the deceased and the decree obtained against them binds not only those heirs who are impleaded in the action but the entire estate of the deceased. I derive support for my view from the decision of the Supreme Court in N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Sahib, AIR 1966 SC 792, wherein the Court observed: “It is also settled that where the defendant in an action dies after institution of the suit, the creditor after 6 WP 924/10 diligent and bona fide enquiry impleads some but not all the heirs as legal representatives, the heirs so impleaded represent the estate of the deceased and a decree obtained against them binds not only those heirs who are impleaded in the action but the entire estate including the interest of those not brought on the record: Daya Ram v. Shyam Sundari. This Court at p.1054 observed : The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. 7 WP 924/10 The Court has therefore recognised the principle of representation of the estate of the deceased by some heirs where the defendant dies during the pendency of a suit to enforce a claim against him and not all the heirs are brought on the record. If after bona fide enquiry, some but not all the heirs of a deceased defendant are brought on the record, the heirs so brought on the record represent the entire estate of the deceased, and the decision of the Court in the absence of fraud or collusion binds those who are not brought on the record as well as those who are impleaded so nominee. Daya Ram’s case, it is true, did not relate to the estate of a deceased muslim, but the rule enunciated is of the domain of procedural law and applies to all communities irrespective of the religious persuasion on personal law. Counsel for the plaintiff says that this rule applies only to cases where the defendant dies after institution of the suit, and does not apply where a suit is instituted against the heirs of a deceased debtor. The reason suggested is that by the combined operation of 0rder 22 Rules 4 & 5 8 WP 924/10 Code of Civil Procedure there is a decision of the Court that persons impleaded are the heirs of the deceased and are allowed to be brought on the record as his heirs and legal representatives. Reliance is also placed upon the definition of "legal representative" in section 2(11) of the Code of Civil Procedure. It is submitted that where persons are either expressly or by implication directed or permitted by an order of the Court to represent the estate, in the absence of fraud or collusion the heirs brought on the record will represent the entire estate, and the decree passed against them and proceedings taken pursuant thereto will be binding upon the heirs not so impleaded. ” In view of the decision of the Supreme Court, the first contention of Mr. Godbole that it was necessary to bring all the heirs of the original tenant on record and the decree would not be binding on the heirs who were not brought on record, has to be rejected. 6. Mr. Godbole referred to a decision of the Supreme Court in Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup, 9 WP 924/10 (1990) 4 SCC 700, and submitted that a decree for eviction obtained against the heirs of the original tenant without bringing on record all the heirs of the deceased cannot be executed on the heirs who are not parties to the suit. In that case, the suit was admittedly filed after the death of a tenant by joining some of the heirs of the tenant as parties and not all. It was in this context that the Supreme Court held that the decree was not binding on all. Since in the present case the suit was filed against the original tenant who died during the pendency of the suit, the decision has no application to the facts of the present case. 7. The second contention regarding collusion is only stated to be rejected. Copy of the judgment dated 21 June 1995 passed by the Trial Court in the suit clearly discloses that not only that there was no collusion but the suit was seriously fought by the respondent nos. 3(i) and 3(ii). The Trial Court upheld the defences of respondent nos.3(i) and 3(ii) and dismissed the suit. The dismissal of the suit on merits itself negates the contention of collusion. It was only in appeal that the landlords were able to persuade the appellate court to set aside the judgment of the trial court and to pass a decree for possession for the first time. The 10 WP 924/10 contention of collusion and fraud has no merit and is rejected. 8. As regards the third contention, I doubt whether the application at Exhibit­14 made by the petitioners amounts to resistance or obstruction within the meaning of Order 21 Rule 97 of the Code. By that application, the petitioners had prayed that the decree was a nullity and should be declared as a nullity. That was not really an obstruction or resistance to the execution of the decree but they contended that the decree was a nullity. Consequently, Order 21 Rule 97 of the Code was not attracted to the hearing of the application of the petitioner made at Exhibit­14. Assuming however that the application was in the nature of resistance or obstruction within the meaning of Order 21 Rule 97 of the Code, in my view, the full­fledged inquiry like a suit was not called for in the facts and circumstances of the case for the reasons indicated below: Order 21 Rule 102 of the Code reads thus: “102. Rules not applicable to transferee pendente lite.­ Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the 11 WP 924/10 possession of immovable property by a person to whom the judgment­debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation.­ In this rule, “transfer” includes a transfer by operation of law.” Provisions of Rules 98 and 100 of the Code which contemplate an adjudication as a suit, do not apply to resistance or obstruction in execution of a decree for possession of immovable property by or at the instance of a person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed. Explanation to Rule 102 provides that the transfer includes transfer by operation of law. The present petitioners claim that they have inherited the tenancy by operation of law, namely by section 5(11)(c) of the Bombay Rent Act. They would, therefore, be covered by the extended meaning of “transfer” as defined under explanation to Rule 102 of the Code. The provisions of Rules 98 and 100 of the Code would, therefore, not apply regarding the obstruction raised by them, they being the 12 WP 924/10 transfers within the meaning of Rule 102 of the Code. Consequently, the third objection also has no merit. 9. No other point was urged. 10. There is no merit in the writ petition which is hereby rejected. 11. Learned counsel for the petitioners prays that execution of the decree be stayed for a period of 8 weeks as the petitioners want to challenge this order in the Supreme Court. The execution of the decree is stayed for a period of 8 weeks. (D.G. KARNIK, J.)