Civil Revision No. 3350 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3350 of 2008 Date of Decision: 29.07.2009 Jagsir Singh ....Petitioner. Versus Mahasha Dev Raj ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Sameer Sachdeva, Advocate, for the petitioner. Mr. Avnish Mittal, Advocate, for the respondent. AJAY KUMAR MITTAL, J. In this revision petition filed under Article 227 of the Constitution of India, the petitioner is aggrieved against the order dated 28.04.2008 (Annexure P-4) passed by the executing court whereby the objections filed by him were dismissed. Briefly stated, the facts of the case are that in the year 2000-01, the plaintiff-respondent filed a suit for recovery of Rs.2,60,000/- against Balchittar Singh, father of the petitioner, on the averments that on 4.2.1998, the defendant-Balchittar Singh took a loan of Rs.1,55,000/- on the agreed rate of interest, i.e. 2% per month, and executed a pronote and receipt in that regard. It was pleaded that an amount of Rs.1,05,000/- was standing due against him on 4.11.1999 to one Parmod and Company and the defendant requested the plaintiff to Civil Revision No. 3350 of 2008 -2- adjust the said amount of Rs.1,05,000/- and to take the liability of said company in respect of that outstanding debt of Rs.1,05,000/-. The defendant executed pronote and receipt for an amount of Rs.2,60,000/- in favour of the plaintiff. The defendant took the previous pronote dated 4.2.1998 back and executed fresh one dated 4.11.1999 for an amount of Rs.2,60,000/-. The plaintiff requested the defendant to make the payment of the loan amount of Rs.2,60,000/- as principal and Rs.45,000/- as interest at the rate of 2% per month but non-payment of the same gave rise to the filing of the suit for recovery. Upon notice, the defendant filed a written statement raising various preliminary objections including that the pronote and receipt were forged and fabricated one. Denying the other averments made in the plaint, a prayer for dismissal of the suit was made. The trial court framed issues on 22.11.2001 and the plaintiff concluded his evidence on 18.1.2002. When the case was at the stage of defendant's evidence, the defendant-Balchittar Singh expired on 25.2.2002. The said fact was brought to the notice of the trial court by the counsel for the parties but the legal representatives of the defendant were never brought on record nor any notice was served upon them. Thereafter, the trial court closed the evidence of the defendant and passed a decree for recovery of Rs.2,60,000/- against the defendant on 3.5.2002. On 27.5.2006, the petitioner (son of deceased Balchittar Singh) on coming to know that the plaintiff-respondent had procured a decree against his father by fraud and cheating, filed an objection petition before the executing court. However, the said objection petition was dismissed by the executing court vide order dated 28.4.2008. Hence, the present revision petition. Civil Revision No. 3350 of 2008 -3- I have heard the learned counsel for the parties and have perused the record. Learned counsel for the petitioner has raised two-fold submissions; firstly, that Judgment debtor-Balchittar Singh, father of the petitioner, had expired on 25.02.2002 whereas the trial Court passed the decree on 03.05.2002, i.e. after the death of the defendant and, therefore, the decree was null and void as having been passed against a dead person; secondly, that when the defendant had died during the pendency of the suit, the suit stood abated as it was the duty of the plaintiff to file an application to implead the legal representatives of the deceased-defendant in the suit. Therefore, the objections were erroneously dismissed by the executing court. Learned counsel for the respondent-decree holder has, on the other hand, submitted that the petitioner was having knowledge about the pendency of the suit and it is the duty of the legal representatives of deceased-defendant to come on record of their own and on account of their failure to do so, the suit did not abate. He has placed reliance on a Full Bench judgment of this Court in Smt. Chand Kaur v. Jang Singh etc., 1978 Cur. L.J. 543 and submitted that in view of Rules 2-A and 2-B which had been added by the High Court Amendment after Rule 2 of Order 22 vide notification published on April 11, 1975 and substitution of Rule (3) to Rule 4 of Order 22 of the Code of the Civil Procedure (in short “the Code”), if through over-sight or on account of some other cause, the legal representatives of the deceased-defendant could not be brought on record before the decision of the suit, the decision given shall remain binding on the parties. Civil Revision No. 3350 of 2008 -4- The issue that needs attention of the Court in the present revision petition is as to whether a decree passed in a suit in which defendant had been served and was pursuing the case but had died before the decision of the suit, the decree passed against such defendant, is a valid decree or not; and secondly, whether on the death of the defendant during the pendency of the suit, the suit stood abated in the absence of the plaintiff having brought the legal representatives of the deceased-defendant on record. Order 22 of the Code relates to death, marriage and insolvency of parties. Rule 1 provides that on the death of the plaintiff or the defendant, the suit shall not abate if the right to sue survives. Rule 2 prescribes the procedure where one of several plaintiffs or defendants dies and right to sue survives. Rule 4 deals with procedure to be adopted in case of death of one of several defendants or of sole defendant. Section 122 of the Code empowers the High Court to make rules. It reads thus:- “122. Power of certain High Courts to make rules.- High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.” In exercise of the aforesaid power vested under Section Civil Revision No. 3350 of 2008 -5- 122 of the Code, the High Court vide notification published on 11.4.1975 had added Rules 2A and 2B to Order 22 which provide as under:- “2-A. Every advocate appearing in a case who becomes aware of the death of a party to the litigation (whether he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.” “2-B. The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis.” Further, sub-rule (3) to Rule 4 was substituted and sub- rules (4), (5) and (6) to Rule 4 were also added by this Court vide notification published on April 11, 1975. The substituted sub-rule (3) and added sub-rules (4), (5) and (6) are reproduced for ready reference:- “(3) Where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.” (ii) In rule 4 the following shall be inserted as sub- rules (4), (5) and (6), namely:- “(4) If a decree has been passed against a Civil Revision No. 3350 of 2008 -6- deceased-defendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit. (5) Before setting aside the decree under sub-rule (4) the Court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit. (6) The provisions of section 5 of the Limitation Act, 1963 shall apply to applications under sub-rule (4).” The aforesaid provisions were interpreted by the Full Bench of this Court in Smt. Chand Kaur's case (supra), wherein in paras 6 and 7, it was laid down as under:- “6. ..... Section 122 of the Code authorises the High Court to alter or add to all or any of the rules in the First Schedule. By virtue of powers under Section 122, sub-rule (3) of rule 4 of Order 22 of the Code was substituted by the High Court. Prior to the substitution of the sub-rule, a duty was cast upon the plaintiff to make any application for impleading the legal representatives of the deceased-defendant Civil Revision No. 3350 of 2008 -7- within a prescribed period and if he failed to do so, the suit stood abated. It was experienced that many of the cases in the trial as well as appellate Courts stood abated under this rule as the dominus litis did not make application to make legal representatives of the deceased as parties to the pending lis for the reason that either he did not know about the rule, or about the death of the defendant. In order to lessen the rigour of law, the High Court added rules 2- A and 2-B after rule 2 of Order 22 and sub- rules 4 to 6 to rule 4 of the said Order. It also substituted sub-rule (3) to rule 4, as already stated above. Under rule 2-A it was made the duty of every Advocate appearing in a case, who became aware of the death of a party to the litigation, to give intimation about the death of that party to the Court and to the person who was dominus litis. In rule 2-B, it was provided that the duty to bring on record legal representatives of the deceased-defendant would be of the heirs of the deceased and not of the person who was dominus litis. Substituted sub-rule (3) provided that if no application was made under sub-rule (1) within the prescribed period, the suit would not abate Civil Revision No. 3350 of 2008 -8- as against the deceased-defendant and the judgment pronounced, withstanding the death, shall have the same force and effect as if it had been pronounced before the death took place. Under sub-rules (4) and (5) legal representatives of the deceased-defendant were authorised to make application for setting aside the decree qua them and if such an application was made the Court could in certain circumstances set aside the decree. By virtue of sub-rule (6) the provisions of Section 5 of the Indian Limitation Act, 1963, were made applicable to the application under sub-rule (4). 7. The main purpose for addition of rules 2-A and 2-B and sub-rules (4), (5) and (6) of rule 4 and substitution of sub-rule (3) to rule 4, was not that the legal representative of the deceased defendant should not be brought on the record. On the other hand, its purpose was that if through over-sight or on account of some other cause, the legal representatives of the deceased defendant could not be brought on record before the decision of the suit, the decision given should remain binding on the parties. In spite of the substituted provisions, Civil Revision No. 3350 of 2008 -9- the legal representatives of the deceased defendant even after amendment by the High Court were normally impleaded as defendants in the trial as well as appellate Courts. The intention of the High Court in making the provisions was not to penalise the legal representatives of the deceased defendant. It is on account of this reason that they have been given the right to make an application for setting aside the judgment and decree of the Court under sub-rules (4) and (5) of rule 4 and the Court has been empowered to set aside the decree if it was proved that they were not aware of the suit or that they had not intentionally failed to make an application to bring themselves on the record. The Court, however, before setting aside the ex parte decree has to satisfy further that if the legal representatives had been on the record, a different result might have been reached in the suit.” In view of the above, it is held that the defendant who was served and had been defending his case, on his death, it was the duty of his legal representatives to have come on record themselves and in the absence of the same, the suit did not abate and the decree passed would be a valid decree. The executing court was, thus, right in Civil Revision No. 3350 of 2008 -10- rejecting the objection petition filed by the petitioner. In view of the above, finding no merit in the instant revision petition, the same is hereby dismissed. There shall, however, be no order as to costs. July 29, 2009 (AJAY KUMAR MITTAL) seema/gbs JUDGE