Animadverting upon the order dated 7.7.2011 passed by the District Munsif and Judicial Magistrate, Kodumudi, in E.A.No.9 of 2011 in E.P.No.26 of 2002 in O.S.No.64 of 1997, this revision petition has been filed.
2. The facts as stood un-curtained in this matter could be encapsulated thus:
O.S.No.64 of 1007 was filed by the respondents 1 and 2/plaintiffs herein seeking partition. After contest, the preliminary decree was passed. Thereafter, final decree also was passed. E.P.No.26 of 2002 was filed for executing the final decree. At that stage, E.A.No.9 of 2011 was filed by the revision petitioner herein, who happened to be the 39th defendant in the suit, alleging that the decree passed by the trial Court was a nullity, because pendente lite D5 and D7 died, but their L.Rs. were not impleaded. The counter was filed by the plaintiffs, whereupon the Court passed orders dismissing the E.A.
3. Being aggrieved by and dissatisfied with the said order passed by the Executing Court, this revision is focussed on various grounds.
4. The learned counsel for the petitioner placing reliance on the grounds of revision, would pilot his arguments thus:
The decree passed by the trial Court as against D5 and D7 was a nullity, as they died pendente lite and their L.Rs. were not impleaded. Such non-impleadment actually vitiates the final decree itself, in fact the final decree should be set aside and after impleading the LRs of D5 and D7, fresh final decree has to be passed, after hearing all concerned.
Accordingly the learned counsel for the petitioner/D39 would pray for allowing the E.A., after setting aside the order of the lower Court.
5. In a bid to torpedo and pulverise the arguements as put forth and set forth on the side of the revision petitioner/D39, the learned counsel for the respondents/plaintiffs would pilot his arguements thus:
(i) D5 remained absent during trial, even without filing the written statement and he died on 10.4.1992, and D7 died on 28.5.1996, both after passing of the preliminary decree. The final decree was passed on 31.3.1999. D5 and D7 already sold their respective shares in favour of D10 and D11 respectively. D11 died pendente lite and his L.Rs were impleaded and they all contested the matter. Thereafter alone the final decree was passed and then E.P.was filed. Over and above that, in order to make the records straight, a memo was filed on 28.8.2002, so as to get exonerated D5 and D7 from the proceedings and that was allowed. As such, absolutely there is no illegality in the proceedings.
(ii) The revision petitioner/D39 is not in any way concerned with the shares of D5 and D7 and he also never challenged that the shares of D5 and D7 should be allotted to him. He has also not preferred any appeal as against the preliminary decree or the final decree. Surprisingly and shockingly, after 11 years of the passing of the final decree, the E.A.9 of 2011 was filed. As such, no interference in revision is required as against the order passed by the lower Court.
6. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court, in dismissing the E.A.for declaring the final decree passed as nullity on the ground of the LRS of D5 and D7 having been not added in the proceedings.
7. Relating to the narration of facts, as put forth by both sides are concerned, absolutely there is no disagreement between the revision petitioner/D39 and the respondents. As such, the aforesaid detailing of facts would exemplify and demonstrate, project and portray that D5 remained ex-parte and thereafter he died during the pendency of the final decree proceedings. In such a case, non-impleadment of the LRs of D5 cannot be taken as fatal to the proceedings. The LRs of a person, who remained ex-parte need not be impleaded and it is explicitly contemplated under Order 22 Rule 4(4) of C.P.C. There is also nothing to indicate that D7, during his life time examined himself as a witness and participated in the proceedings, consequently, the same cited provision is applicable relating to him also.
8. Here the LRs of D5 and D7 are not raising any objection. It is only D39, who filed this revision. There is no knowing of the fact as to why D39 kept quiet till the final decree was passed. Had really D39 wanted to challenge the proceedings relating to non-impleadment, certainly he should have raised it even before the passing of the final decree, but he kept quiet and played posum.
8. As has been correctly pointed out by the learned counsel for the respondents/plaintiffs, after a decade or so, D39 had chosen to file the E.A., so as to stall the execution proceedings. The trial Court, after considering the pro et contra, appropriately dismissed the said application, warranting no interference in revision.
10. In fact, D10 and D11, including the LRs of D11 participated in the proceedings and in fact, shares were allotted in favour of them and relating to that D39 has not preferred any appeal at any point of time.
11. The learned counsel for the revision petitioner/D39 would cite the following decision of the Honourable Apex Court:
2009(6) CTC 374 T.GNANAVEL V. T.S.KANAGARAJ AND ANOTHER, an excerpt from it would run thus:
"7. . . . . All the three revision petitions filed by the appellant and the respondents were taken up analogously by the High Court and the High Court by the impugned order held that once the defendant had died and the civil Court passed a decree in ignorance of the same and thereafter without there being any exemption obtained by the plaintiff/appellant under Order 22, Rule 4(4) to bring the heirs and legal representatives of the defendant on record before the judgement was pronounced, the ex parte decree so passed in favour of the plaintiff/appellant became a nullity. In view of the aforesaid order, the High Court dismissed the civil revision cases filed by the appellant and allowed the civil revision case filed by the respondents. It is against this common judgement of the ...............
17. In view of the discussion made herein above and the decisions considered by us in this appeal, it is amply clear that the High Court had rightly held that the order of the trial Court was a nullity and thus the same was liable to be set aside. . . . "
12. In my considered opinion the above precedent has been cited out of context. The factual matrix involved in the said precedent was that a suit for specific performance was filed by the plaintiff therein as against the sole defendant; pendente lite the defendant died; but that was not brought to the knowledge of the Court and in ignorance of the death of the said defendant, the decree was passed; subsequently, the plaintiff, by invoking Order 22 Rule 4(4) of CPC got exemption from impleading the LRS, which approach the honourable Apex Court looked askance at and declared that the said decree therein was a nullity. But here the narration of facts as set out supra would reveal that it was entirely different. As such, I could see no merit in this revision.
13. In the result, the civil revision petition is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.
Msk To The District Munsif and Judicial Magistrate, Kodumudi