Case Note & Summary
The matter arose from a dispute over a house property allotted by a cooperative housing society. The petitioner claimed to have entered into an oral agreement of sale with the first respondent, Dwaraka Prasad Mathur, for purchase of the house for Rs.20,000 subject to obtaining permission for transfer from the Society. The petitioner alleged that he paid dues and became a member of the Society, but before obtaining possession, a decree of specific performance dated 11 October 1976 had been obtained by the second respondent in O.S.No.77-A of 1976. Aggrieved, the petitioner filed Civil Suit No.121-A of 1984 alleging fraud and collusion between the two respondents to obtain a collusive decree. During pendency of the suit, both original defendants died. The first defendant's widow, Shakuntala, was brought on record as legal representative; the second defendant's son, Prakash Chand Saxena, was brought on record as legal representative and was the decree-holder in the earlier suit. Shakuntala also died during the suit and no legal representative was substituted, causing the suit to abate as against the first defendant. The petitioner filed First Appeal No.17 of 1989 before the Madhya Pradesh High Court, Gwalior Bench. The High Court dismissed the appeal on the ground that the suit had abated as a whole. The petitioner then filed a special leave petition before the Supreme Court. The Supreme Court considered whether an appeal could be filed against a dead person and whether the legality of the decree against the second defendant could be examined when the decree against the first defendant had become final. It also examined the applicability of Order 22 Rule 4(4) of the Code of Civil Procedure, 1908, as amended by the CPC Amendment Act 1976. The petitioner's counsel argued that under the amended rule, the suit need not abate as a whole because a counsel could give notice of death and bring legal representatives on record. The Supreme Court rejected this argument. The Court noted that when the death of Shakuntala was brought to the notice of the petitioner's counsel, an application was filed to delete the name of the first defendant from the array of parties, and the deletion was allowed. Consequently, the decree as against the first defendant in O.S.No.121-A of 1984 became final. Since the suit was based on a plea of fraud and collusion to avoid the earlier decree in O.S.No.77-A of 1976, any finding given by the High Court in the appeal against the second defendant would be inconsistent with the final decree as against the first defendant. Therefore, the suit as a whole stood abated. The Court held that Order 22 Rule 4(4) CPC was clearly inapplicable to the facts because the application to delete the name was filed and allowed, making the decree final qua the first defendant. The Court found no merit in the special leave petition and dismissed it, affirming the High Court's dismissal of the appeal.
Headnote
A) Civil Procedure - Abatement of Suit - Suit Abates as a Whole When Decree Against One Defendant Becomes Final and Further Proceedings Would Create Inconsistent Findings - Code of Civil Procedure, 1908, Order 22 Rule 4 - The petitioner filed a suit to avoid an earlier decree on grounds of fraud and collusion; after the first defendant's legal representative died without substitution, the suit abated against the first defendant and the decree against him became final - The Supreme Court held that since any decision against the remaining defendant would be inconsistent with the final decree against the first defendant, the entire suit abated and the High Court rightly dismissed the appeal - Held that suit No.121-A/84 as a whole stands abated. (Paras Not mentioned) B) Civil Procedure - Order 22 Rule 4(4) CPC - Non-Applicability When Application to Delete Deceased Defendant Filed and Allowed - Code of Civil Procedure, 1908, Order 22 Rule 4(4) as amended by CPC Amendment Act, 1976 - The petitioner contended that under the amended rule, counsel can give notice of death and legal representatives can be brought on record, so the suit need not abate as a whole - The Supreme Court rejected this argument because an application to delete the name of the first defendant was filed and allowed, making the decree final against him; therefore Order 22 Rule 4(4) CPC is clearly inapplicable - Held that the special leave petition is dismissed. (Paras Not mentioned)
Issue of Consideration
Whether an appeal can be filed against a dead person, whether the legality of a decree against the second defendant can be examined when the decree against the first defendant has become final, and whether Order 22 Rule 4(4) CPC as amended by CPC Amendment Act 1976 is applicable to the facts
Final Decision
The Supreme Court dismissed the special leave petition, holding that the suit No.121-A/84 as a whole stood abated. The High Court rightly dismissed the appeal. Order 22 Rule 4(4) CPC is inapplicable because application to delete the name of the first defendant was filed and allowed, making the decree against first defendant final; any finding against second defendant would be inconsistent with that final decree.
Law Points
- Suit abates as a whole when decree against one defendant has become final and further proceedings would lead to inconsistent findings
- Order 22 Rule 4(4) CPC as amended by CPC Amendment Act 1976 is not applicable when application to delete deceased defendant is filed and allowed
- non-substitution of legal representative of deceased defendant makes decree final against that defendant
