The Patna High Court has dismissed a petition under Article 227 of the Constitution challenging the sub-judge’s order rejecting an application for dismissal of an execution case. The court held that a judgment does not become void for all defendants if the right to sue persists against the other defendants.

Justice Arun Kumar Jha, preside over the observed case, “In the present case, even if the contention of the petitioner regarding the decree passed against the deceased persons were held to be correct, the decree would not become void against all the accused if the right to proceed against the other accused survives. Since the process would not cease as a whole and, for this reason, the decree as a whole would not become void.

The case involved a judgment debtor (the petitioner) and a decree holder (respondent No. 1), who had previously obtained a decree for declaration of title and possession over the land detailed in the complaint. While the trial was underway, some defendants died and their heirs were replaced. After the suit ordered the defendants to relinquish vacant possession of the land, the plaintiff initiated execution proceedings. The executing court has been informed of a suspension request pending before the Court of Appeal. Nevertheless, he denied petitioner’s request to dismiss the execution charge against the deceased defendants, giving rise to the present petition.

The petitioner’s counsel submitted that the impugned order is arbitrary, an exercise of disguised power and lacks sustainability. He argued that the order was made without judicial review and contradicted the established legal principle that a judgment against a deceased person is null and void, thereby rendering it unenforceable.

Alternatively, counsel representing the respondent argued that the impugned order was sound and did not require any intervention from the Court. Further, he contended that there was no legal obligation to register a miscellaneous matter under Sections 47 and 151 of the Code of Civil Procedure in the absence of a provision cited in the petition, since the central issue can be resolved by the court using the existing procedure. save.

The Court noted that generally, under Rule 459 of the Civil Court Rules, a miscellaneous case should be initiated when an application is filed under Section 47 of the Code of Civil Procedure. However, in the present case, the petitioner’s application did not contain any indication of the specific provision under which it was filed before the executing court in the execution case and did not request the introduction of a miscellaneous matter to respond to the objections raised.

The Court observed that the petitioner’s petition claimed that some defendants died during the trial, suggesting that the execution case should be dismissed.

However, the Court stated: “In these circumstances, the opening of a miscellaneous case was not justified. Furthermore, if there are no issues raising disputed facts requiring the production of evidence and a full hearing, I do not believe it is necessary to bring a miscellaneous case based on a motion that has been filed without making such a request or without mentioning any provision. Therefore, the contention of the learned senior counsel for the petitioner on the aforesaid ground is not tenable.

The Court further noted that the executing court had already considered the petitioner’s arguments in detail in its order. Petitioner’s contention that the decree was void due to the death of the defendants was rejected because the legal heirs of the deceased defendants, who had been registered in the case, chose not to contest or were absent, thereby forfeiting all claim based on reduction or nullity.

Furthermore, the Court emphasized that since the legal heirs were duly registered, the decree could not be considered void.

The Court emphasized, “The petitioner is the son of the accused Rasulan Nessa and the petitioner himself was a party in the trial court as well as one of the appellants in the appellate court. He did not reveal his mother’s death in the trial court and even made part of his mother’s death in the appeal court.

The Court held that the challenge to the enforcement proceedings was unfounded, as the absence of a miscellaneous case was not relevant in these circumstances.

Thus, the Court held that the impugned order passed by Deputy Justice Vaishali at Hajipur in the execution case was a reasoned order passed after careful consideration of every aspect of the case.

Accordingly, the Court dismissed the application while allowing the parties to resort to legal remedies if they wish through appropriate procedures.

Case Title: Abdul Badud v. Abdul Quayum & Ors.

Citation LL: 2024 LiveLaw (Pat) 98

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