1 wp 3685.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3685 OF 2010 Chandrashekhar S/o Sidramappa Chinchansure .. Petitioner Versus 1. Bhaurao Sidramappa Chinchansure Died through his L.Rs. .. Respondents Shri S. P. Shah, Advocate h/f Shri U. R. Kulkarni, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 06TH JULY, 2011. PER COURT : . The petitioner is original defendant No. 1. The present respondent/original plaintiff had filed a suit for possession and mesne profit against the present petitioner No. 1 and other two defendants. The possession was claimed only against the defendant No. 1 i. e. the present petitioner. The Trial Court decreed the suit and the three defendants i. e. present petitioner and defendant Nos. 2 and 3 preferred an appeal before the District Court. The District Court allowed the appeal. 2 wp 3685.10 Aggrieved thereby the original plaintiff preferred second appeal before this Court. During the pendency of the second appeal the defendant Nos. 2 and 3 died. The legal heirs of defendant Nos. 2 and 3 were not brought on record. This Court eventually allowed the second appeal thereby set aside the judgment of the Appellate Court and restored the judgment of the Trial Court. The present respondent filed execution proceedings. The original defendant No. 1 in the mean time also filed a review application bearing No. 83/2009 seeking review of the judgment and order passed by this Court in the second appeal. One of the ground for review was that the original respondent Nos. 2 and 3 had died and there was no representation on behalf of said respondents. This Court dismissed the said review holding that though the defendant No. 3 had died and his legal representatives are not brought on record, the whole appeal does not abate and the contentions of the present petitioner on that ground were negatived. Even the legal representatives of original defendant No. 3 filed special leave petition before the Apex Court contending that the defendant No. 3 had died during the pendency of second appeal and the second appeal was disposed of without bringing the legal representatives on record. The Apex Court observed that the decree for possession is only against the 3 wp 3685.10 defendant No. 1 and not against the third defendant and as such, the legal heirs of defendant No. 3 are not the aggrieved parties. 2. The present petitioner filed an objection purportedly U/Sec. 47 of the Code of the Civil Procedure on the ground that the decree is a nulity and unexecutable as the whole second appeal abated in view of the fact that the legal representatives of original defendant Nos. 2 and 3 were not brought on record in the second appeal. The executing Court rejected the said objection. Aggrieved thereby the present writ petition is filed. 3. Shri Shah, the learned counsel for the petitioner strenuously contended that the order impugned is against the law. The decree was not executable. While considering the decree the findings are also required to be considered. The second appeal itself stood abated. The first appellate Court had reversed the judgment of the Trial Court holding that no partition had taken place and when said judgment was sought to be reversed by the second appellate Court the said finding was also required to be reversed and the same could not have been done in absence of defendant Nos. 2 and 3. As such, the whole appeal stood abated and if the second appeal itself stands abated, 4 wp 3685.10 there is no decree in force as the judgment of the first appellate Court would stand. The learned counsel relies on the judgment of the Apex Court in a case of Bandi (Dead) by LRS and others Vs. Siri Chand (Dead) by LRS and others reported in (1999) 2 S.C.C. 448 and the judgment in a case of State of Punjab Vs. Nathuram reported in AIR 1962 SC 89. The learned counsel further contends that it is not the operative part of the decree which is only required to be considered. But decree would consist of finding on each and every issue. This aspect has not been considered by the Court below. 4. The factual matrix is not disputed. The plaintiff has claimed recovery of possession only against the defendant No. 1. The Trial Court had passed the decree for delivery of possession only against the defendant No. 1. The said decree was upset by the first appellate Court and in the second appeal this Court had allowed the second appeal reversing the judgment of the lower Appellate Court thereby the judgment of the Trial Court was restored, whereby the decree directing the defendant No. 1 to deliver the possession came into force. In a case of Bandi (Dead) by LRS and others referred supra the Apex Court was 5 wp 3685.10 dealing with case where separate appeals were filed and there was a failure to bring the legal heirs of deceased appellant in one of the appeals. The Apex Court held that in such circumstances, even the other appeals would stand abated as, if the same is not done, then it would result in conflicting decrees. In a case of State of Punjab Vs. Nathu Ram, referred supra, the facts before the Apex Court were that a claim for compensation was filed by two claimants. The reference was allowed. The State filed an appeal. During the pendency of the appeal one of the respondents died and his legal representatives were not brought on record and the contention was that the total appeal should abate. The Apex Court held that in view of the fact that one of the claimants died, the whole appeal would abate. The argument that both the claimants had defined share and so the appeal would not abate as a whole was negatived. 5. In the present case, the decree for possession was claimed only against the defendant No. 1. The suit was not for declaration of ownership, but was only for possession and that too specifically against the defendant No. 1. The Trial Court has also passed the decree for possession only against the defendant No. 1. In fact, in the suit no relief was claimed against the 6 wp 3685.10 defendant Nos. 2 and 3. In such circumstances, there was no decree which was joint as against all the defendants. The decree is specifically directed only against the defendant No. 1 to deliver the possession. It cannot be said that the decree was joint and indivisible. 6. In view of the fact that the decree was only against the defendant No. 1, non bringing of legal heirs of defendant Nos. 2 and 3 would not result in abatement of the whole second appeal and it cannot be said that the decree is unexecutable. 7. Even the legal representatives of the original defendant No. 3 had challenged the judgment delivered in the second appeal before the Apex Court. The Apex Court dismissed the special leave petition on the ground that the decree is only against the first defendant and not against the third defendant and so legal representatives of the third defendant are not aggrieved parties. 8. In view of the above conspectus of the matter no case is made out for interference in the supervisory jurisdiction under Article 227 of the Constitution of India. As such, the writ 7 wp 3685.10 petition is dismissed, however, no costs. [ S. V. GANGAPURWALA, J. ] bsb/July 11