(Made by N.KIRUBAKARAN,J.) The writ petition has been preferred against the order of the Debt Recovery Appellate Tribunal dated 5.12.2008 in M.A.No.200 of 2008, confirming the order of the Debt Recovery Tribunal, reviewing its earlier order with regard to abatement of the third respondent.
2. The facts which led to the filing of the writ petition are that the respondent Indian Bank filed a suit in O.S.No.106 of 1988 on the file of Additional Sub Judge, Chittoor and the said suit was decreed against the first defendant and dismissed against second and third defendant. Aggrieved by the same, the Bank preferred an appeal in A.S.No.1688 of 1991 on the file of the Andhra Pradesh High Court. By judgment dated 17.12.2003, the Andhra Pradesh High Court passed a decree against all the defendants. In the meanwhile, the Recovery of Debts due to Banks and Financial Institutions Act, 1993 came into force and the Bank filed O.A.No.212 of 2004 under
Sections 31 and
31A of the DRT Act before the Debt Recovery Tribunal, Hyderabad, for passing of final decree and recovery certificate.
3. During the pendency of the said O.A., the third respondent Jyothinathan died on 9.5.2007. Since no legal heirs of the third defendant were brought on record, the Debt Recovery Tribunal dismissed the O.A. against the third defendant on 29.1.2008 and the said order is extracted as follows:
"Proceedings dated 18.12.2007 show that D-3 was expired and the matter is posted for steps of D-3. No steps are taken and as such claim against D-3 is abated. Both counsels represented that D-1 was already set exparte and D-2 filed written statement. Posted to 6.5.2008 for evidence."
4. Subsequently, the matter was taken up on 9.7.2008 and the following order was passed:
"Both the counsel present. It is submitted by the counsel for applicant that the present O.A. is filed on the basis of decree passed by the civil Court as per the orders of the Hon'ble High Court. It is represented before this Tribunal that it is well settled law that after passing of a decree, if any JDR passes away, the question of abatement does not arise. Under the circumstances, the order passed against D3 dated 21.3.2008 is set aside. The counsel for the applicant is requested to verify the legal position. For clarification on the legal issues, posted to 9.9.2008."
Thus, the Tribunal recalled the docket order dated 29.1.2008 and set aside the abatement order passed against the third defendant.
5. Aggrieved by the order of the Debt Recovery Tribunal, Hyderabad dated 9.7.2008, the legal heirs of the third defendant/deceased Jyothinathan, the petitioners herein, preferred M.A.No.200 of 2008. The Debt Recovery Appellate Tribunal, dismissed the appeal holding that the question of abatement does not arise on account of death of any judgment debtor subsequent to the passing of a decree and that the matter was again posted for clarification on the legal issues again on 9.9.2008. Hence, present revision petition has been preferred against the order of the Debt Recovery Appellate Tribunal.
6. Mr.N.V.Srinivasan, learned counsel for the petitioner contended that the Tribunal, having dismissed the O.A. against the third defendant as abated by order dated 29.1.2008, ought not to have reviewed the order on 9.7.2008. He further contended that if the petition to bring legal heirs of the deceased third defendant was not filed as per the Limitation Act, the proceedings abates. In this regard, he relied on a judgment of the Apex Court in Union of India v. Ram Charan and Ors. [MANU/SC/0238/1963 = AIR 1964 SC 215], wherein the appeal was dismissed as abated for not bringing the legal representatives on record in time.
7. On the other hand, Mr.V.Lakshmi Narayanan, learned counsel for the first respondent/Bank, supported the orders of the Tribunal and relied upon a decision of the Supreme Court in Ratna alias Ratnavati v. Syndicate Bank and Ors. [1995 (1) SCC 407], wherein, it is held as under:
"A decree passed confers right and imposes liabilities which are fixed until the decree is reversed or varied in appeal. The preliminary decree declares rights of the plaintiff and liabilities of the respective defendants and they become final. The suit would not abate between the date of preliminary decree and final decree."
8. It has to be seen that the proceedings are governed by special statute, viz. the Recovery of Debts due to Banks and Financial Institutions Act, 1993. The provisions of the Act override other laws, as per
Section 34 of the Act.
Section 22 of the Act speaks about the procedure and powers of the Tribunal and Appellate Tribunal.
Section 22(1) states that the Tribunals shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1980), but shall be guided by the principles of natural justice and the Tribunal shall have powers to regulate their own procedure.
Section 24 of the Act states about limitation and the same reads as under:
"The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to an application made to a Tribunal."
Thus, the Code of Civil Procedure is not strictly applicable and the Tribunals are guided by the principles of natural justice and they possess powers to regulate own procedure.
9. In view of special nature of the provisions of the Act, the Debt Recovery Tribunal rightly recalled its order of dismissal of application against the third defendant as abated. The Debt Recovery Appellate Tribunal also dismissed the appeal holding that subsequent to the passing of a decree, the question of abatement does not arise on account of the death of any judgment debtor.
10. It has been held by the Apex Court in Uthirapathi v. V.Ashraf Ali [AIR 1988 SC 1168] as under:
"In case of death of judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record at any time. Of course, in case of death of judgment debtor, the Court can fix a reasonable time for the said purpose, the Court can dismiss the execution petition for default. In any event, the execution petition cannot be dismissed as abated."
11. In the instant case, the Debt Recovery Tribunal has merely passed the order dated 29.1.2008, based on the earlier proceedings and stated that the proceedings stands abated against the third defendant. However, in the presence of both the parties, the order dated 29.1.2008 was recalled on 9.7.2008 on the ground that after passing of a decree, if the judgment debtor passes away, abatement does not arise. The Debt Recovery Appellate Tribunal also rightly dismissed the appeal stating that subsequent to the passing of the decree, question of abatement does not arise on account of demise of the judgment debtor. The said finding of the Debt Recovery Appellate Tribunal is sustainable. The judgment in Ratna alias Ratnavati v. Syndicate Bank and Ors. [1995 (1) SCC 407] is similar to the facts of this case and the dictum is squarely applicable to the instant case.
12. As the grievance of the petitioners is that they have not been impleaded as legal heirs in the proceedings, liberty is given to both the parties to approach the Tribunal and to file a petition for substitution of the legal heirs of the third defendant/deceased Jyothinathan in the above said proceedings. On filing of such application, the same may be considered by the Debt Recovery Tribunal, on merits.
The writ petition stands dismissed with the aforesaid observation. However, there shall be no order as to costs. Consequently, M.P.Nos.2 to 4 shall stand dismissed.
kpl To The Registrar Debts Recovery Appellate Tribunal 4th Floor, Indian Bank Building Ethiraj Salai, Chennai 600 002