IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1590 of 2005 1. CENTRAL BANK OF INDIA, A BODY CORPORATE CONSTITUTED UNDER THE COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKING) HAVING ITS HEAD OFFICE AT CHANDRA MUKHI NARIMAN POINT, MUMBAI-400001. 2. THE CHAIRMAN CUM MANAGING DIRECTOR, CENTRAL BANK OF INDIA, CHANDRAMUKHI NARIMAN POINT, MUMBAI-400001. 3. THE BRANCH MANAGER, CENTRAL BANK OF INDIA, LOHIANAGAR, BRANCH, P.S. KANKARBAGH, DIST. PATNA. (ORIGINAL DEFENDANTS 1ST SET IN TITLE SUIT NO.209/2004). ………………………………………………………PETITIONERS. Versus 1. SMT.BARPHI DEVI, DAUGHER OF LATE RAM AUTAR SINGH, WIFE OF SRI RAM DAHLU SINGH, RESIDENT OF VILLAGE-GHOSRAWAN, P.S. GIRIYAK , DISTRICT- NALANDA AT PRESENT RESIDING AT HOUSE NO.C/48 AT LOHIANAGAR, KANKARBAGH, P.S. KANKARBAGH, DISTRICT-PATNA-20. (ORIGINAL PLAINTIFF IN T.S. NO.209/04). ………………………………………………………….O.P. 1ST SET. 2. M/S HARISH CHANDRA AND COMPANY, A PARTNERSHIP FIRM BLOCK-1 STALL NO.9, RAJENDRA NAGAR, POLICE STATION-KADAMKUAN, DIST. PATNA. 3. SHRI VINOD KUMAR CHHUGANI, SON OF LATE HARISH CHANDRA. 4. SRI DEEPAK KUMAR CHHUGANI, SON OF LATE HARISH CHANDRA. 5. SRI RAJESH KUMAR CHHUGANI, SON OF LATE HARISH CHANDRA CHHUGANI. ALL PARTNERS OF THE FIRM M/S HARISH CHANDRA AND COMPANY, BLOCK NO.1 STALL NO.9, RAJENDRA NAGAR, P.S. KADAMKUAN, PATNA-16. (ORIGINAL DEFENDANTS 2ND SET IN T.S. NO.209/04) ………………………………………………………..O.P. 2ND SET. 6. JANAK PRASAD YADAV, SON OF LATE BADAR PRASAD YADAV, RESIDENT OF VILLAGE & P.O. MATHIA, POLICE STATION-RAM NAGAR, DISTRICT-EAST CHAMPARAN. 7. THE BIHAR STATE HOUSING BOARD, PATNA THROUGH THE CHAIRMAN, 4, MANGLES ROAD, SECRETARIATE POLICE STATION-DISTRICT-PATNA. (ORIGINAL PERFORMA DEFENDANTS 3RD SET IN T.S.NO.209/04). ………………………………………………………O.P. 3RD SET. ----------- - 2 - For the Petitioners : Mr. Aditya Sharan, Advocate. For the O.P. No.1 : M/s. R.K.P. Singh & Bal Bhushan Choudhary, Advocates. --------- 25. 15.9.2009. Heard learned counsel for the petitioners and opposite party No.1. Though O.P. No.7 has entered appearance by filing vakalatnama, at the time of hearing of this application none appears on his behalf. Other opposite parties have not appeared despite service of notice upon them On 14.2.2006, notices were issued upon the opposite party to show cause as to why the revision petition be not admitted and, if possible, disposed of at the stage of admission itself. In view of that, this Civil Revision is being heard and disposed of at this stage with the consent of the appearing parties. This Civil Revision is directed against the order dated 2.6.2005, passed by the Sub Judge-VI, Patna, in Title Suit No.209/2004, whereby the petition for declaration that the entire suit had abated in view of the death of defendant no.8, Janak Prasad Yadav, and non substitution of his legal representatives within the prescribed period or even till date had been dismissed. It is submitted on behalf of the petitioners that though Title Suit No.209 of 2004 had been filed by the Opposite Party - 3 - No.1, for declaration of her right, title and interest upon he suit land prescribed in Schedule-I of the plaint and also that the defendant no.1 has got no right to realize decretal /certificate amount with regard to that suit land treating as mortgaged security and/or property of the certificate debtor, the defendant nos.5 to 7. It was further sought to be declared that the judgment and decree dated 16.11.1989 and 30.12.1989 respectively passed in Title Mortgage Suit No.196 of 1988 by Sub Judge-X, Patna as well as the ex parte order dated 16.3.1999 in Execution Case No.129 of 1998 by Debt Recovery Tribunal are not legal, valid and enforceable, so far as the suit land is concerned, and they are not binding on the plaintiff and as such, the recovery proceeding is also not maintainable. Further, the relief with regard to permanent injunction was also sought for. It is submitted that though no relief was prayed against the defendant no.8, still he was necessary party in the suit and the matter being in controversy between the parties cannot be decided in the suit in his absence. Thus, in view of that, it is contended that the impugned order suffers from error and is liable to be set aside and the suit is fit to be declared as had abated under Order XXII Rule 4(3) of the Code of Civil Procedure. Learned counsel appearing for opposite party no.1, submitted that no relief has been prayed against defendant no.8 - 4 - and since he was a proforma defendant there was no question of abatement of the entire suit due to non substitution of legal representatives of deceased defendant no.8. It is also contended that defendant no.8 had neither filed any written statement nor had contested the suit. It is also submitted that it appears that the petitioners themselves filed a petition under Order VII Rule 11 (D) of the Code of Civil Procedure and Section 14 read with Section 151 of the Code of Civil Procedure. This petition has been brought on record by the learned counsel for opposite party no.1 as Annexure-‘E’. The learned counsel drew attention of this Court towards the statement made by the petitioners in paragraph-4 of Annexure-‘E’ which is quoted as under: “Paragraph-4 of Annexure-‘E’: That this suit suffers from the law of misjoinder of party. The defendants nos.8 and 9 are unnecessary party in this case and this suit is to be dismissed on this score.” The learned counsel for opposite party no.1, submitted that in view of the above, the petitioners’ case is also that defendant no.8 was not a necessary party. The Trial Court upon hearing the rival submissions of the parties, had come to the conclusion that since no relief has been sought against the deceased defendant no.8, therefore, there will be no question of abatement of entire suit due to the non - 5 - substitution of his legal representatives. In view of the aforesaid, since no relief has been sought against the deceased defendant no.8 and defendant no. 8 had not filed written statement and contested the suit and also the fact that the petitioners themselves had stated in their petition filed on affidavit under Order VII Rule 11, that the defendant no. 8 was not necessary party, no error is apparent in the impugned order. I do not find any jurisdictional error in the impugned order dated 2.6.2005. As a result, this application is dismissed. P.S. (Dr. Ravi Ranjan,J.)