E.S.A. No.3303 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. E.S.A. No.3303 of 2000 Date of Decision: 5th.09.2009 Balbir Singh ....Appellant Versus Gurdev Singh and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Harinder Sharma, Advocate for the appellant. Mr. N.S. Thind, Advocate for respondent No.1. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The facts of the case are that Balbir Singh-appellant and Roop Singh filed objections under Order 21 Rule 58 CPC against the attachment/sale of residential house No.B-1-48, situated at Partap Nagar, Kotkapura, in the execution titled as “Gurdev Singh v. Tota Singh.” It was alleged by the objectors that originally Amar Singh son of Maghar Singh was the owner of the house and after his death, the same was inherited by objectors Roop Singh, Balbir Singh, Judgment Debtor Tota Singh, Balbir Kaur, Guddi, Basant Singh, Taro, in equal shares. Secondly, the house is E.S.A. No.3303 of 2000 2 not liable to be attached under Section 60 of CPC, being residential and all others residing therein. The share of Judgment Debtor Tota Singh is only to the extent of 1/7th and the house is not yet partitioned. Decree was passed against Tota Singh and the same is not binding on objectors. However, the objections were dismissed. The Objector-Balbir Singh filed an appeal against the dismissal of the objections before the Additional District Judge, Faridkot. The appeal was dismissed by the Additional District Judge, Faridkot, vide order dated 08-08-2000, on the ground that the appeal against a dead person, is not maintainable. Along with the same, even the application to implead legal heirs of Gurdev Singh was dismissed due to the reason that the legal heirs had already been brought on record before the Executing Court. Hence, the present appeal. Learned counsel for the appellant, while challenging the order dated 08-08-2000 passed by Additional District Judge, Faridkot, argued that Gurdev Singh, Decree Holder had died during the execution proceedings pending before the Executing Court and after his death, his Legal Representatives were brought on record but due to the mistake of the counsel for the Decree Holder (Gurdev Singh, deceased) amended Memo of Parties was not brought on record nor was the due correction made by the Executing Court, in its order dated 14-11-1998, while dismissing the objections filed by the appellant and accordingly, Memo of Parties as was given by the Executing Court, while supplying certified copy of the Order was prepared while filing the appeal before the District Judge. It is also submitted by learned counsel for the appellant that in the appeal, due to this error, notices were issued only to Gurdev Singh (deceased) and even though the Legal Representatives of Gurdev Singh were not mentioned in the Memo of Parties but upon issue of notice in appeal, despite the report of the Process Server that Gurdev Singh had already E.S.A. No.3303 of 2000 3 expired during the execution proceedings before the Executing Court, the legal heirs of Gurdev Singh, who were already contesting the execution proceedings appeared themselves as respondents in appeal to contest the same. It is further submitted by learned counsel for the appellant that even while putting in appearance in appeal, neither the legal heirs of Gurdev Singh nor their counsel ever brought to the notice of the Appellate Court that the Memo of Parties in the appeal needs amendment. Learned counsel for the respondents, on the other hand, submitted that a perusal of the certified copy of the order dated 14-11-1998, shows that the legal heirs of the decree holder have been duly impleaded as party and the first page of the certified copy of the order duly shows the correction in the Memo of Parties. It is further submitted that the objections were also filed by the decree holder-Tota Singh, which were dismissed and the Civil Revision against the said order dated 22-03-1997 was also dismissed by the High Court vide order dated 15-01-1998. Thus, even on merits, the appellant has no case at all. It was further submitted that the house, in question, was not held to be the house of the father of the present appellant i.e. Amar Singh. As such, the question of their being the owner of the said house, having fallen to their share on account of the death of the father-Amar Singh, does not arise. Thus, the following law point arises in this case :- “ whether the appeal could have been dismissed on the technical ground that the name of the deceased-Gurdev Singh was mentioned in the respondents instead of the legal heirs of the deceased.” It was also submitted by learned counsel for the appellant that the decree was against Tota Singh only. They being the legal heirs of the father along with the brother Tota Singh, they were owner of 6/7th share in the said property and the Tota Singh, Judgment Debtor had only 1/7th of E.S.A. No.3303 of 2000 4 the said share. Thus, the house only to the extent of 1/7th share could have been auctioned and not the entire house. On a perusal of the above facts, it is evident that the appeal of the appellant was dismissed on mere technicality. It has also not been denied by learned counsel for the respondents that the legal heirs of Gurdev Singh, Decree Holder, who were already contesting the execution proceedings, appeared in the appeal to contest the same. It is also not denied that the legal heirs of Gurdev Singh nor their counsel tried to bring the same to the notice of the Court that the Memo of Parties, in the appeal needs amendment. The respondents, herein, have tried to take advantage of the apparent mistake made by the appellant in having impleaded Gurdev Singh, Decree Holder, who had expired, as the respondents instead of the legal heirs of Gurdev Singh, Decree Holder. The appellants were to gain nothing by impleading the deceased-Gurdev Singh as respondent instead of the legal heirs. Consequence of an order against a dead person, is of no help and especially, in the facts of the present case, wherein, all knew about the death of Gurdev Singh. It is not a case that there was any malafide intention on the part of the appellant to implead deceased-Gurdev Singh as a party instead of legal heirs of Gurdev Singh. It is also not denied that an application to implead the legal heirs of Gurdev Singh was duly allowed by the trial Court. In the matter of civil nature, as in the present one, the party cannot be allowed to suffer on account of technicality and error as in the present case, especially, when the respondents were a party to perpetuate the error by not disclosing that Gurdev Singh had died and the Memo of Parties should be, accordingly, corrected inspite of the fact that they duly appeared in the appeal. In view of the above discussion, the order dated 08-08-2000 passed by Additional District Judge, Faridkot, is set aside and the matter is remanded back to the Court of Additional District Judge, Faridkot to decide E.S.A. No.3303 of 2000 5 afresh on merits after allowing the amendment in the Memo of Parties by bringing on record the legal heirs of Gurdev Singh. The parties are directed to appear before the Court of Additional District Judge on 05-11-2009. The litigation in the present case is pending since long. As such, the Additional District Judge, Faridkot, is directed to decide the same on merits within three months from the date of appearance of the parties, in person or through their Counsel before the Court. Disposed of accordingly. (NIRMALJIT KAUR) 5th.09.2009 JUDGE gurpreet