IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 213 of 2010 Date of decision: 27.12.2010. Shyam Singh …Petitioner. Versus Mohinder Singh and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Suneet Goel, Advocate. For the respondent: Mr. B.M.Chauhan, Advocate. Deepak Gupta, J. (oral) 1. By means of this petition the petitioner (here-in- after referred to as the plaintiff) has challenged the order dated 22.5.2010 whereby the learned Executing Court has dismissed the application under Order 21 Rule 32 filed by the plaintiff. 2. Briefly stated the facts of the case are that original plaintiff Shyam Singh filed a suit against Balak Ram his son Mohinder Singh, Krishna wife of Mohinder Singh. During the pendency of the suit Balak Ram died. His widow Mugli Devi and his other sons Ramesh, Durga Singh and Rajpal were brought on record as his legal heirs and they were duly represented in the trial Court. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 The suit filed by Shyam Singh was dismissed by the learned trial Court. 3. It appears that by inadvertence in the heading of the judgement name of Balak Ram continued to be shown as defendant No.1 and names of Durga Singh and Raj Pal were not reflected. Thereafter, the plaintiff Shyam Singh filed an appeal and this appeal was also filed against original defendants Balak Ram, Mohinder Singh, and Krishna. During the pendency of this appeal an application was moved by Shyam Singh to the effect that Mugli Devi (widow), Ramesh, Durga Singh and Rajpal had already been brought on record of the trial Court but by mistake in the memorandum their names were not reflected. It was, therefore, prayed that Balak Ram may be permitted to be sued through his legal representatives including the four persons named above. This application was taken up by the learned District Judge (Forest) on 21.2.2007 when the following order was passed:- “From the perusal of the record of the learned trial Court it appears that the application for brining on record the LRs of respondent No. 1 Sh. Balak Ram was allowed on 21.4.2003 by the learned trial Court and thereafter the amended head note of the plaint was not amended 3 accordingly. The case be now put up on 28.2.2007 for further orders.” 4. The learned District Judge did not care to either allow the application or pass any clear cut orders on the same. Thereafter, the only order was that amended head note be filed. It appears that the amended head note was filed and thereafter matter was heard but no notice was ever issued to Mugli Devi (widow), Ramesh, Durga Singh and Rajpal. Execution petition was filed and in the execution petition it was claimed that the decree of the Court had been disobeyed by Mohinder Singh, Durga Singh, Raj Pal and Krishna Devi. This execution petition has been dismissed on the ground that the decree against Balak Ram was a decree against a dead person and therefore, no decree in the eyes of law. Even on merits some observations have been made but I am not going into those at this stage since the main ground which weighed with the learned trial Court was that the decree was either void having been passed against a dead person since it was passed against Balak Ram and the heirs were not bound by the same. I am afraid that the learned trial Court totally fell into error while deciding this issue. As observed above the legal heirs of Balak Ram had been brought on record 4 in the trial Court but in the Appellate Court though an application was filed and their names were brought on record but notices were not given to the newly added heirs i.e. Mugli Devi (widow), Ramesh, Durga Singh and Rajpal. To that extent they cannot be held to be bound by such decree especially in view of the fact that the learned trial Court had dismissed the suit and it was only in appeal that a decree was passed in favour of the plaintiff. This decree at best could bind Krishna Devi and Mohinder Singh and not the others. 5. From the aforesaid discussion, I find that there has been mistake by both the learned trial Court as well as by the learned Appellate Court, who have not cared to ensure that notices were issued to the concerned parties. Whereas on the one hand, the respondents here-in cannot be held to be bound by the decree since no notices were issued to them in appeal the petitioner also cannot be left remedyless. Therefore, while dismissing this petition, liberty is given to the petitioner to approach the learned lower Appellate Court with the complete facts who shall then issue notices to the respondents whose names had been missed out and he shall then decide whether he shall hear the appeal afresh or not. Needless to say that the parties can raise 5 all contentions including the plea of limitation available to them before the learned Appellate Court. The petition is disposed of accordingly. No order as to costs. 27th December, 2010 (Deepak Gupta) ™ Judge