* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2117 OF 2008 IN S.C.SUIT NO. 3592 OF 1997 W I T H CIVIL APPLICATION NO. 5447 OF 2008 IN FIRST APPEAL NO. 2117 OF 2008 IN S.C.SUIT NO. 3592 OF 1997 Ramdhari D. Mishra & Ors. ...Appellants V/s. Gervis Cyril Rodrigues & Ors. ....Respondents ======= Mr.Anil Singh a/w. Mr.Ashwin Shah, adv.for appellants. Mr.Khushnood Akhtar h/f. Mr.Saeed Akhtar, adv.for respondents no.1 to 6. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 15TH JULY, 2009. P.C. : 1. In view of facts and circumstances of the case, production of records and proceedings is dispensed with. Heard the counsels extensively for hearing of the appeal. 2. This appeal is preferred against the judgment and decree dated 15th October, 2008 passed by the Bombay City Civil Court declaring that the decree dated 4th September, 1993 passed in Short Cause Suit No.1900 of 1992 is null and void, ab-initio and * 2 * setting aside the same. It also granted permanent injunction to restrain the appellants inter-alia from disturbing the respondent’s possession over the suit property being Survey No. 351, Hissa No.23 (CTS No.3426) admeasuring 1210 sq.yds situate in Village-Kole Kalyan, Taluka-Andheri. Short Cause Suit No. 1900 of 1992 was filed by the appellants for specific performance of the agreement dated 15th June, 1961 executed by one Manuel Francis Rodrigues, the predecessor of the respondents in favour of Dev Narayan, the predecessor of the appellants for sale of the suit property. It was claimed by the appellants that on execution of the agreement of sale, Manuel had handed over the possession of the suit property to Dev Narayan. That suit was decreed on 4th September, 1993 as Manuel failed to appear in the court. 3. The respondents filed S.C.Suit No.3592 of 1997 seeking declaration that the above mentioned decree dated 4th September, 1993 in favour of the appellants was obtained by playing fraud upon the court. It was a decree against a dead person as Manuel had died in the year 1977. The respondents claimed that Manuel had never entered into any agreement with Dev Narayan and had never handed over possession of the suit property to him. Further, according to them, the suit filed by the appellants for specific performance, 30 years after the agreement was * 3 * hopelessly barred by the law of limitation. The appellants contested the suit claiming that they had no knowledge of death of Manuel. They however claimed to be in possession of the suit property and cultivating the same since the year 1961. 4. The appellants in their written statement did not dispute that on the date of filing of their suit, Manuel was dead. They merely claimed ignorance of the fact. In this circumstance, the decree obtained by the appellants against Manuel was a nullity. The Bombay City Civil Court has rightly set aside the same. 5. This brings us to the claim of the appellants to possession of the suit property. The respondents examined their Constituted Attorney one Suhail M.Y.Khandwani and the appellants examined appellant no.1 in support of their respective cases. Both the sides have claimed to be in possession of the same. Undisputedly, the respondents as the heirs of Manuel are owners in respect of the suit property and as such must be held to be in possession thereof. The only evidence of possession that has been brought before the court by the appellants was of the application made by them to the City Survey Office for taking measurements of the suit land and Mutation entry No.7783 in the revenue records. This mutation entry has been carried out pursuant to the decree dated 4th September, 1993 passed in Short Cause Suit No.1900 of 1992. In * 4 * the circumstance, the finding of the trial court that the suit property is in possession of the respondents is the correct and possible finding. 6. Mr.Singh, the learned counsel for the appellants objects to the evidence before the court on behalf of the respondents. The respondents had examined their constituted attorney, one Suhail Khandwani. None of the respondents stepped into the box to depose into the matter. Mr.Singh relying upon a decision of the Apex Court in the case of Janki Vashdeo Bhojwani V/s. Indusind Bank Limited reported in (2004) 2 SCC page 584 submits that the evidence of the Constituted Attorney is required to be discarded in its entirety. The decision cited by Mr.Singh imposes certain restrictions on the power of the constituted attorney to depose in a court of law on behalf of his principal. It has been held by the apex court that the power to depose in place of the principal extends only to the depositions in respect of the “acts” done by the Constituted Attorney in exercise of the power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, * 5 * he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal in entitled to be cross-examined. In the instant case, the suit filed by the respondents essentially was on the ground that the appellants had obtained a decree against a dead person. The evidence of the Constituted Attorney as regards the death of Manuel cannot be said to be restricted by the limitation mentioned above, because, these facts have been proved by the death certificate and the burial certificate produced by him during his deposition. These documents even otherwise could have been taken on record and considered by the court as there are public documents. Therefore, there is no need to discard the evidence of the Constituted Attorney. 7. In the above circumstances, there is no question of fact or law arising in the matter. The appeal is dismissed in limine. 8. With the dismissal of the appeal, Civil Application No.5447 of 2008 does not survive. The same is accordingly disposed off. [SMT.R.P.SONDURBALDOTA, J]