JUDGMENT
Madan Mohan Prasad, J.
1. This miscellaneous second appeal is directed against an order passed under Section 47 of the Code of Civil Procedure.
2. It appears that Title Suit No. 34 of 1958 was instituted by the respondents for a declaration of their title over certain lands, recovery of possession thereof, mesne profits and a further declaration that they were entitled to withdraw the sale proceeds of the usufruct of the land in question. The plaintiffs filed the suit as a result of an order passed against them under Section 145 of the Code of Criminal Procedure. There were two sets of defendants in this case. Defendants 1 to 24, who are Rajputs and for the sake of convenience, have been termed as the Rajput defendants and another set belonging to the Koiri community, defendants 25 to 39 who have been termed as the Koiri defendants. Out of these Koiri defendants, defendant 25. Narsingh Koiri and his sons defendants 26 to 30 were parties to the proceeding under Section 145 of the Code of Criminal Procedure. The remaining Koiri defendants 31 to 39 were the minor sons of defendants Nos. 26 and 27. They were not parties to that proceeding. In the suit aforesaid the Koiri defendants confined their claim to two Khatas, namely. 105 and 154 alone. The Rajput defendants claimed the remaining lands in question. The suit was decreed by the trial Court on the 31st of July, 1961. An appeal to the district Judge was made and that also was dismissed on the 23rd of March, 1966. There was a second appeal to the High Court which also was dismissed on the 19th March 1969. Execution was levied in Execution Case No. 25 of 1961. An ob-iection was filed therein on the 5th of May. 1969 by defendants 31 and 32, who were minors at the time of the suit, but had attained majority at the date of the objection. These two defendants alleged that during the tendency of the suit, defendant No. 39 Dharmrai Koiri, the minor son of defendant No. 27. Inderdeo, had died on
the 24th August, 1958, but his legal heir, who was his mother had not been substituted in his place and for that reason the decree passed in that suit was a nullity. It may, however, be stated at this juncture that on the 6th. October, 1958 the plaintiffs had filed an application before the trial court saying that defendant No. 39 had died on the 24th of August. 1958 and that his “Wali” Inderdeo his father, was already on record as defendant No. 27 and, therefore, the name of defendant No. 39 may be expunged. The court passed an order accordingly expunging the name of defendant No. 39. The execution Court held that the defendants, were estopped from raising such a plea in the execution case not having raised it on any earlier occasion, that the order expunging the name of defendant No. 39 on the ground of his legal heir being on record was passed in the presence of the remaining defendants and no objection having been raised thereto, the objection was barred by the principle of constructive res judicata and that, the right to sue having survived in the case against the defendants, Order 22, Rule 2 of the Code was the provision applicable to the present case and not Rule 4 and the suit had not therefore abated and that the interest of the deceased defendant had been represented by the Karta of the family and that the deceased defendant was merely a pro forma defendant having no interest in the land and thus not a necessary party. The lower appellate-Court also concurred in the aforesaid findings of the execution Court, Hence this appeal.
3. Mr. Jagdish Sahay, appearing for the appellants, has raised the following points: Firstly he urged that there being no proper petition for substitution of the legal representatives or the deceased respondent, the decree-passed in the case was a nullity; secondly that the point with regard to the decree being a nullity can be taken for the first time even during an execution proceeding; and thirdly, that in the circumstances of the present case-the decree being joint and indivisible against the defendants the entire suit had abated. Learned counsel for the respondents has however, urged that upon the concurrent finding of fact arrived at. by the courts below to the effect that defendants 3l to 39 were not necessary parties to the suit it is not open to the appellants to ask this Court to enter into the merits thereof. Secondly it has been urged that the petition filed by the plaintiffs on the 6th of October, 1958 was in essence a petition for substitution of the legal heir of the deceas–
ed defendant and the same having been allowed by the court, it cannot be challenged, the appellants being estopped from doing so much less challenge for the first time during the execution proceeding. Thirdly, it has been urged that if facts are necessary to be investigated for the purpose of determining whether a court passing the decree had jurisdiction such an objection cannot be raised for the first time at the stage of execution.
4. I will first take UP the first point raised by learned counsel for the appellants. A certified copy of the petition was read out to this Court and placed before me. It appears from this application that the applicant stated about the death of Dharamrai Koiri on the 24th of August, 1958 and further stated that his father and “Wall” Inderdeo Koiri was already on record and therefore the application along with an affidavit was being filed for expunging the name of the deceased and taking proper steps in the suit. Mr. Sahay has contended that the word “Wall” means “a guardian” and there is thus no statement in the petition to the effect that the father was the legal representative of the deceased and therefore this petition cannot be considered to be one under Order 22. Rule 4. I am unable to accept this contention. It. is well known that there is no form prescribed by law for making an application under Order 22, Rule 4 of the Code. An application in this respect, cannot, therefore, be taken literally. It has to be gathered by reading the application as a whole ,as to what is the real purpose for the application. In this case the plaintiffs apprised the court of the death of the deceased and told the court that his guardian was on record as defendant No. 27. The court was also pleased to treat this application as one which prayed for expunction of the name of the deceased, his legal heir being already on record. It appears from the order passed on that date that the learned Munsif treated the statement regarding the guardian being on record as a statement to mean legal heir being on record. This petition was. therefore, treated as such. It is obvious from the statement in the petition itself that the plaintiffs brought the matter to the notice of the court, both regarding the death of defendant No. 39 and regarding the presence on record of his father. In this connection a case reported in AIR 1961 Andh Pra 112 (Shop of Battu Lachayya v. Rechintala Veeriah) may be referred to. In this case the plaintiff instead of following the procedure prescribed in Order 22, Rule 4 had filed an application for amendment of the plaint and caused to be substituted in
place of the deceased defendant his legal representative, and it was held to amount to a substantial compliance with the requirements of Order 22. Rule 4 of the Code, although there was no application in the form contemplated by the aforesaid rule. It is quite clear from Rule 4 of order 22 that the party has to apprise the court of the death of the defendant and about the legal representative and the court has to make such legal representative a party. It is for the court to take such proceeding as may be necessary to bring legal representative on record. In the instant case the court accepted the application which in effect means that the legal representative of defendant No. 39 being already on record, the name of the deceased respondent had to be expunged end it was expunged. In substance, therefore, it is not a case at all where no step was taken for substitution of the legal representative of the deceased defendant.
5. The next grievance in this respect made by Mr. Sahay is that no notice of this application had been given to the present appellants. This is purely a question of fact. In this case the courts below have come to a concurrent finding in that behalf to the effect that the order dated 6th October. 1958, was passed on this application in the presence of the remaining defendants The order sheet of that date itself shows that the aforesaid order was passed in the presence of these two appellants, inasmuch as their guardian ad litem had appeared in court on that date and filed written statement on their behalf. It also appears from the order sheet of that date that the other defendants Nos. 25 to 28 and 30 had also appeared on that date and prayed for time to file their written statement. Even if I were, therefore, to enter into this question of fact, it is obvious that the findings of the courts below are correct.
6. Another point raised in this
connection is that even if the substitution had been made it was bad in law, inasmuch as the father of the deceased was not the actual legal representative, but it was the mother of the deceased who would under the law be the legal heir. This is again a question of fact. It appears that in the execution Court the decree-holder denied the existence of the mother and it was asserted by these appellants. It is, however, immaterial whether the mother was in existence on that date or not. Firstly, it has to be noted that the attention of the court was not drawn by any of the defendants to the fact that the mother of the deceased was in existence and that she was the legal heir and not the
father. The question as to who is the legal representative of a deceased party is a mixed question of law and fact. The existence or otherwise of a person, who can be in law treated as legal representative is purely ,a question of fact. The appellants cannot obviously be allowed to raise the question of fact in respect of the mother being alive at the relevant time for the first, time during the course of the execution proceedings. My attention has been drawn to a decision of a learned single Judge in the case of Jaggernath Singh v. Narayan Sarogi AIR 1965 Pat 300. In that case the original plaintiff had died and his minor son under the guardianship of his mether, had been substituted in his place. The objection was raised on the ground that the widow had not been substituted. The first appellate Court overruled the objection on the ground of abatement. The learned Judge held that the point could not be raised for the first time in the appeal. In that ease reliance was placed by the learned Judge on the fact that the defendant had kept silent over the matter all through while the suit was pending in the trial Court and it had not taken any ground relating to this point before the lower appellate court and further that it could not be taken that the defendant was not aware of the existence of the widow. Reliance was placed by the learned Judge on the decision in the case of Balgajan Rai v. Sukhu Rai, AIR 1948 Pat 288 and the learned Judge quoted the observations of the learned Judges deciding the aforesaid case to the following effect:
“It would amount to putting a premium on fraud to hold that they were entitled to conceal certain facts from the Court, and then on the basis of these facts, to assert that there had been an abatement of the appeal.”
In the instant case the existence of the mother of the deceased could not have been unknown to these appellants. They never raised this point at any stage whatsoever, be it the trial stage, appellate stage or at the stage in the second appeal in this Court and it was for the first time raised only during the execution proceeding. In the circumstances aforesaid the appellants cannot be allowed to raise this point for the first time in the execution proceeding.
7. Mr. Sahay has next urged that the obiection that the decree is a nullity can be raised at any stage and in the present case the correct legal representative of the deceased not being on record, the decree was a nullity. He has placed reliance on certain decisions of the Supreme Court as also of this Court. The first case on which reliance
is being placed is the case of Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838. The facts of this case have no application to the facts of the present case. In that case there was a suit under Delhi and Aimer Rent Control Act for ejectment of the defendant. The parties had entered into a compromise that the decree for ejectment be passed against the defendant on certain terms. It was held that the decree passed on the basis of an award was is contravention of Section 13 (1) of the Act. because the decree had been passed by the court without satisfying itself that the ground of eviction existed. Therefore the decree was a nullity. This was thus a case of violation of a mandatory provision of law. The other case on which reliance has been placed is Vasu-deva Dhaniibhai Modi v. Rajabhai Abdul Rehman. AIR 1970 SC 1475. This was a case under the Bombay Rents. Hotel and Lodging House Rates (Control) Act (57 of 1947). A suit was filed for eiect-ment and for payment of arrears of rent. The court of first instance dismissed the suit, but on appeal a decree for ejectment was passed and a revision against the same before the High Court was unsuccessful. A petition for special leave was then filed and granted, but subsequently vacated. During the course of execution the contention raised was that the court of Small Causes had no jurisdiction to entertain the suit and its decree on that account was a nullity. Ultimately, the matter came up before the Supreme Court by special leave. Their Lordships held that the court exercising power under the Act aforesaid has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Their Lordships held that when a decree is made by a court which has no jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the obiection appears on the face of the record. Reliance has been placed on this dictum. It will, however, appear, that their Lordships have gone further and laid down-
".........where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction........." The law laid down in this case, therefore, in my view does not support the appellants and supports on the other hand the respondents. In the instant
case it cannot be said that the objections regarding the jurisdiction appears on the face of the record. As I have said earlier, existence of certain facts will have to be proved before it can be said that the correct legal representative had not been impleaded and before it can be found as to what is the effect thereof on the decree. This objection could have certainly been taken at the earliest stage during the suit prior to the execution proceeding, but it was not so done. It is obvious that in the present case an investigation has to be made regarding existence of the mother at the relevant moment in order to determine whether correct legal representative had been brought on record.
8. In this very connection learned counsel for the appellants has also placed reliance on the decision of two learned single Judges of this Court and a Bench decision. In the case of Jitu Mahton v. Widow of Puran Mahton, AIR 1961 Pat 96 the question of abatement had been raised during the course of the appeal itself. The appeal stood dismissed as against some of the defendant respondents and the question for determination by the learned Judge was whether the appeal in their absence was incompetent. It was held that although in a suit against wrongdoers it is not necessary to implead all the wrongdoers yet when the plaintiff has made his choice and obtained a decree against all. he cannot proceed further against some only so as to lead to an inconsistency. The learned Judge was not called upon to decide as to whether the objection could be raised at such a late stage as the execution proceeding it not having been raised earlier. The decision has, therefore, no application to the facts of the present case. Another decision on which reliance was placed, is Gobind Lal v. Bandhu Ram Kahar, AIR 1961 Pat 240. The point involved was similar to the one in the earlier case. There was an application to substitute the heirs of the defendant on his death at the appellate stage and the whole appeal was held to have abated. It will appear that even in this case the question had come up at the appellate stage. An objection was raised then. This case also thus has no relevance to the facts of the instant case. Another decision of this Court is the case Dakho Prasad Singh v. Baijnath Sah. 1966 BLJR 1009. The suit in that case was for declaration of title and possession over certain lands which had been subject-matter of dispute in a proceeding under Section 145 of the Code of Criminal Procedure. During the pendency of the suit one of the defendants died. An objection was taken
by the other defendants that in the absence of the substitution of his legal representatives, the whole suit had abated. The trial Court accepted the ground and held that the suit was not properly constituted. It is obvious thus that the objection with regard to the abatement of the suit had been taken at the earliest stage. The learned Judges held in this case that if the interest of the deceased defendant could have been shown to be separate from that of the other defendants as claimed in the case under Section 145 of the Code of Criminal Procedure, the position would have been different and the entire suit would not have abated even though the deceased defendant was not substituted by his legal representatives after his death, but since the interest of defendants was not shown to be separate the entire suit had abated. Reliance has been placed by Mr. Sahay on this case to derive aid therefrom for the proposition that where the interests are not separate or separable the whole suit would abate. It is said that in the instant case also the defendants were termed as joint wrongdoers and therefore the omission to bring on record the correct legal representative of the deceased defendant, resulted in the abatement of the entire suit. As I have said earlier, it is not open to the appellants at this stage to show that the legal representative brought on record was not the correct legal representative and in the absence of the real legal representative the suit had abated. The position in this case, in the circumstances aforesaid, is of no avail to the appellants.
9. On the question of implead-ing the correct legal heir of the deceased, learned counsel for the respondents has placed reliance on the decision of the Supreme Court in Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb, AIR 1966 SC 792. -In this case their Lordships referred to different cases illustrative of the principles laid down by them. The observations of Madhavan Nair. J. in the case of Chaturbhujadoss Kushaldoss and Sons v. Rajamanicka Mudali. AIR 1930 Mad 930 have been quoted therein and may usefully be reproduced here-
“Prima facie, a decree will bind only the parties to it or those claiming through them; but there are exceptions to this rule. The Courts have held that in certain circumstances when one who is not the true legal representative of a deceased person is impleaded as his legal representative, then a decree passed against him in his character as the legal representative of the deceased would be binding on the true represen-
tative though he is not a party to it. The suit may have been instituted against the wrong legal representative at the very commencement or the wrong legal representative may have been brought on record during the pendency of the suit or after the decree and for purposes of execution.”
Applying this principle to the present case, it is obvious that even if it be assumed that the real legal representative had not been brought on record, the point is of no avail to the appellants. Reliance was also placed on another decision of a learned single Judge of this Court in Rambriksh Prasad v. Shyamsunder Prasad Sahu, AIR 1958 Pat 467. In this case also the objection raised was that, the appeal had abated because of non-substitution of two daughters of the deceased defendant and other persons had been substituted. As in the instant case the Court there also had made a note of the fact that, some of the respondents represented the estate of the deceased defendant and the order was passed in the presence of the parties and obiection had not been taken thereto. The point raised before the learned Judge was that the real heirs had not been substituted. The point was not allowed to be raised.
10. Having found that all the three contention of learned counsel for the appellants must fail, there is no merit in this appeal. It is accordingly dismissed with costs. Hearing fee Rs. 51/-.