SATGURU SHARAN SHRIVASTAVAversusDWARKA PRASAD MATHUR (DEAD) THROUGH LRS. AND ORS.

A                    SATGURU SHARAN SHRIVASTAVA
                                 v.
                    DWARKA PRASAD MATHUR (DEAD)
                        THROUGH LRS. AND ORS.

                                 AUGUST 14, 1996
B
                (K. RAMASWAMY AND S.B. MAJMUDAR, JJ.]

          Code of Civil Procedure, 1908: Order 22 Rule 4(4) (As amended by
    C.P.C. Amendment Act, 1976).
c         Suit-Abatement of-Appellant purchased house from respondent
   I-Before appellant could take possession of house respondent 2 obtained a
  decree of specific peifonnance--Suit filed by appellants for setting aside of
  decree-<Jround of frau{}-Pending suit death of both respondents-Widow of
  first respondent, S. as well as so11 of second respondelll, P, brought 011 record
D as legal representatives-After death of widow of first respondent, S, her LRs
  not brought on record and decree in the suit for specific peiformance became
  final-Question whether appeal could be filed against dead person viz. first
  respondent-Application for deletion of llQme of respondent 1 file{}-Held in
  view of the plea of fraud any finding that would be given by the Hi1<h Court
E in the appeai would be inconsistent qua the first respondent-Therefore suit
  of appellant stand abated as a whole-Order 22 Rule 4(4) held inapplicable.

          CIVlL APPELLATE JURISDICTION : Special Leave Petition (C)
     No. 15054 of 1996.

F         From the Judgment and Order dated 15.5.96 of the Madhya Pradesh
     High Court in F.A. No. 17 of 1989.

           S. Bagga, Seeraj Bagga, Tanuj Bagga and Mrs. S. Bagga for the
     Petitioner.

G          S.M. Jain, Sushi! Kr. Jain, A.P. Dhamija for the Respondents.

           The following Order of the Court was delivered :

           Mr. Sushi! Kr. Jain, Advocate takes notice for respondents.

H          This special leave petition arises from the judgment and order of the
                                          700
                  S.S. SHIUVASTAVAv. D.P.MATHUR                         701

High Court of Madhya Pradesh, Gwalior Bench made on May 15, 1996 in A
First Appeal No. 17/89. The admitted position is that one Dwarka Prasad
Mathur was a member of the Secretarial Staff Housing Cooperative
Society. Plot No. 14-C was allotted to him as a member and thereon he
had constructed a house. It is the case of the petitioner that he had entered
into an oral agreement of sale with him to purchase the house for a
                                                                              B
consideration of Rs. 20000 subject to his obtaining permission for transfer
from the Society as per the law. It is his case that he had paid up the
amount due from Dwarka Prasad Mathur to the Society and became
member of the Society as per the resolution * passed by the Society. But
before he got the possession, surprise pranced upon him in the form of a
decree of specific performance obtained by the second respondent Nar- c
vedeshwar Prasad Saxena in O.S. No. 77-A of 1976, dated October 11,1976.
So he filed civil suit No. 121-A of 1984 on the plea that both the respon-
dents had played fraud upon him and it was a collusive decree and sought
to avoid the decree passed in suit No. 77-A of 1976 (suit No. 121-A of 1984
of the petitioner). Admittedly pending suit both the defendants died. As D
far as the first defendant is concerned, his widow Shakuntala was brought
on record as his legal representative. As regards the second defendant,
Prakash Chand Saxena, his son was brought on record as legal repre-
sentative. He is the decree holder in the above suit No. 77-A of 1976 and
the judgment-debtor is the first defendant. As far as the first defendant is
concerned, since Shakuntala also died pending suit, the decree as against E
the judgment-debtor in that suit No. 77-N76 has become final and no legal
representative of her came on record and the suit No. 121N84 got abated.

       The question that arises is whether the appeal could be filed against
dead person, namely, the first respondent? When it was brought to the          F
notice of the learned counsel, an application came to be filed to delete the
name of the first defendant. It was accordingly deleted. The consequence
is that as regard the first defendant/judgment-debtor in the above suit No.
77-A/76 the decree has become final. Equally decree of dismissal in suit
No. 121-A of 1984 also become final.
                                                                               G
       The question then arises : whether the legality of the decree against
the second defendant, decree-holder in suit No. 77-A/76, can be gone into?
In view of the fact that the plea of fraud has been pleaded as against the
first defendant and the second defendant, to avoid the decree in suit No.
77-A/76, necessarily any finding that would be given by the High Court in H
    702                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A   the appeal arising out of No. 121Nl984 would be inconsistent qua the first
    respondent. Under those circumstances, the suit No. 121-N84 as a whole
    stands abated. (As a consequence) the high court rightly has dismissed the
    appeal.

           Shri Bagga, learned counsel for the petitioner, contended that by
B   operation of Order 22, Ruie 4(4), CPC as amended by CPC Amendment
    Act, 1976, it is not necessary that suit should abate as a whole. We find no
    force in the contention. It is true that under the amended rules even a
    counsel can give notice of the death of the parties and on the basis thereof,
    the legal representatives could be brought on record. But when the factum
C   of the death of Shakuntala was brought to the notice of the counsel for the
    petitioner, an application came to be filed to delete the name of the first
    defendant from the array of the parties and accordingly it was allowed;
    consequence being that the decree as against the first defendant in 6.S.
    No. 121-A Nl984 had become final. Since it has become final, the decree
    as against the second defendant's legal representative would became in-
D   consistent with the decree as against the first defendant. Therefore, the
    mere fact that the application came to be ftled later is of no avail and Order
    22, Rule 4(4), CPC is clearly inapplicable to the facts. In this view, it would
    be unnecessary for the H.igh Court to go into the merits in the appeal and
    to record any findings in that behalf:
E
          The special leave petition ·is accordingly dismissed.

    T.N.A.                                                     Petition dismissed.