Om Prakash Marwaha (D) Th. Lrs. & Ors vs Jagdish Lal Marwaha(D)Thr. Lrs

2. The appellants herein are the legal representatives of the original defendant, Nanak Chand in a suit brought against him by Jagdish Lal Marwaha, the predecessor-in- interest of the respondents, to makeover vacant and peaceful possession of quarter No. 37-38, Block No.C-I, Malkaganj, Delhi, and, thereafter, not to interfere with the plaintiff's possession therein. On the suit being dismissed, the plaintiff, Jagdish Lal Marwaha, filed a First Appeal in the Court of Additional District Judge. While the First Appeal was pending, Nanak Chand died on 3rd January, 1985, and apparently an application for substitution of his legal heirs was made in the pending appeal. The said application, however, remained pending and undisposed of, though the appeal was finally decided. Consequently, although, an application had been made for substitution, the heirs of deceased, Nanak Chand, were not brought on record in the first appeal and as a result when the decree 3 was drawn up it was drawn up against Nanak Chand, who, as mentioned hereinabove had died during the pendency of the appeal.

3. Although, no formal order of substitution had been made, the legal representatives of Nanak Chand filed a second appeal before the High Court, which was ultimately dismissed on 12th December, 1991, with the judgment and decree of the First Appellate Court being affirmed. However, since the legal heirs of deceased Nanak Chand had not been brought on the records of the first appeal, a decree in terms of the judgment passed by the High Court in the Regular Second Appeal could not be drawn up and as a result, the decree passed by the First Appellate Court and affirmed by the High Court in second appeal could not be executed. An application, being CM 2873 of 1998, was thereupon filed by the legal heirs of the plaintiff decree-holder in the second appeal praying for rectification of the judgment and 4 decree drawn up by the First Appellate Court or in the alternative to draw-up a fresh decree in the second appeal in terms of the order dated 12th December, 1991, dismissing the appeal.

5. The aforesaid submission did not find favour with the High Court since by an order dated 23rd January, 2004, they had been substituted in place of the original plaintiff, Jagdish Lal Marwaha as his legal representatives. Furthermore, when the appeal was dismissed on 12th December, 1991, they were parties to the appeal. The application was, therefore, allowed with a direction upon the Registry of 5 the High Court to draw up the decree in the second appeal mentioning the names of the parties of the appeal at the time the same was finally disposed of. The said order is the subject matter of challenge in SLP(C) No.3856 of 2007, which is being heard along with SLP(C) No. 7099-7100 of 2008.

7. Appearing for the appellants, Mr. Hasnain, learned advocate, urged that once the second appeal had been disposed of, it was no longer open to the High Court to entertain the several applications filed on behalf of the plaintiffs/respondents to allow the heirs of the deceased-plaintiff to rectify the cause- title of the said appeal. Mr. Hasnain submitted that when the first appeal filed by the plaintiff had been allowed and the judgment of dismissal of the suit had been reversed, and, thereafter, confirmed in second appeal and the review therefrom had been dismissed, it was no longer within the jurisdiction of the High Court to allow the decree of the first appeal 7 to be amended when the same had been drawn up against a dead man.

8. Mr. Hasnain submitted that the procedure adopted by the High Court was not in consonance with law and legal procedures and the orders impugned therein were, therefore, liable to be set aside.

14. We are convinced that this is a fit case where applying the above-mentioned maxim, this Court should not interfere with the orders passed by the High Court.

15. We, accordingly, dismiss both the appeals but without any orders as to costs.

_______________J.

(ALTAMAS KABIR) _______________J.

(MARKANDEY KATJU) New Delhi Dated: 26.11.2008