Case Note & Summary
The Supreme Court allowed an appeal by special leave against the judgment of the High Court dismissing a second appeal as abated. The dispute concerned a compromise decree passed in an earlier suit, T.S. No.72/26, relating to joint family property. The property originally belonged to Ganga Bishan, who held a one-sixth share in the joint family property. After his death, his widow Daulat Kaur came into possession as a limited owner of lands bearing plot numbers 132, 133 and 138. On April 4, 1926, Daulat Kaur gifted these properties to defendants Nos.1 and 2, which led to Suit No.72/26 challenging the gift. That suit was compromised, and each of the four branches was given 3 bighas 3 katas each out of a total extent of 14 bighas 12 katas. Daulat Kaur died on June 27, 1956. The plaintiffs filed T.S. No.66/58 on October 7, 1958, seeking a declaration that the compromise decree in T.S. No.72/26 was null and void and not binding on them. The trial court dismissed the suit, holding that the decree was not obtained by fraud and was valid and binding. On appeal, the appellate court, while recording a finding that the compromise was not vitiated by fraud, allowed the appeal on the ground that defendants Nos.7 to 9 had no right in the property and the family arrangement in the compromise was not valid, therefore it did not bind the plaintiffs. The appellate court reversed the trial court's decree and decreed the suit by judgment dated September 15, 1971. The appellants, legal representatives of defendants Nos.7 to 9, filed Second Appeal No.63/72. During pendency, defendant No.11 died on July 9, 1973. The application for substitution was filed on October 17, 1973, after the expiry of limitation but two days after the Puja Vacation. The High Court by judgment dated June 28, 1978 dismissed the second appeal holding that the entire appeal stood abated due to non-filing of substitution application within limitation. The Supreme Court observed that the compromise was recorded in judicial proceedings in T.S. No.72/26 and each branch was given proportionate shares. Since both the trial court and the appellate court found that no fraud was played, the compromise decree did not get vitiated. On the question of abatement, the Court noted that defendant No.11 was only one of the persons representing the branch of defendant No.9, and other defendants were already representing the estate of the 11th defendant. The death occurred on July 9, 1973 and the application for substitution was filed on October 17, 1973, practically after the expiry of nine days of limitation. The application was filed two days after the Puja Vacation; it would have been in time if filed on the day the Court re-opened after Puja vacation. The Court held that the High Court was wholly illegal in finding that the appeal abated and in refusing to condone the delay of nine days in bringing the legal representatives on record. The explanation of delay is not as rigorous as one to condone delay in filing the appeal. The Supreme Court allowed the appeal, set aside the High Court's order dismissing the second appeal as abated, and held that the decree in T.S. No.72/26 stands unaffected. The compromise decree remained valid and binding, and the plaintiffs' challenge to it was rejected.
Headnote
A) Civil Procedure - Abatement of Appeal - Substitution of Legal Representatives - Code of Civil Procedure, 1908, Order 22 Rule 4; Limitation Act, 1963 - High Court dismissed second appeal as abated because substitution application for deceased defendant No.11 was filed beyond limitation; Supreme Court found that death occurred on July 9, 1973 and application filed on October 17, 1973, nine days after limitation, but two days after Puja Vacation; Court held that explanation for delay in substitution is not as rigorous as for delay in filing appeal and should have been condoned; Held that High Court erred in refusing condonation and dismissing appeal as abated (Paras 1-2). B) Civil Law - Compromise Decree - Fraud and Binding Effect - Code of Civil Procedure, 1908, Order 23 Rule 3 - Compromise decree in T.S. No.72/26 was challenged as null and void on ground of fraud; trial court and appellate court both found fraud not proved; thus compromise decree recorded in judicial proceedings valid and cannot be set at naught; Held that decree binds parties and stands unaffected (Paras 1-2).
Issue of Consideration
Whether the compromise decree in T.S. No.72/26 was vitiated by fraud and hence not binding on plaintiffs; whether the second appeal stood abated due to delay in filing substitution application after death of defendant No.11 and whether delay should be condoned
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's order dismissing the second appeal as abated, and held that the decree in T.S. No.72/26 stands unaffected. The compromise decree was valid and binding, and the plaintiffs' challenge to it was rejected.
Law Points
- Compromise decree recorded in judicial proceedings cannot be set aside unless fraud is proved
- concurrent findings of no fraud are binding
- delay in filing substitution application should be condoned if explanation is reasonable
- especially when delay is short and due to court vacation
- standard for condoning delay in substitution is less rigorous than for delay in filing appeal
- abatement should not be declared when other legal representatives are already on record representing the estate
