Anup Kumar Gupta & Ors. vs Associated Trade Agents & Ors.

The present petitioners are the heirs of one of the three defendants in an eviction suit, which was decreed in favour of the present opposite party no.

The grievance of the petitioners is that the predecessor-ininterest/mother of the petitioners, who was the second defendant in the suit, died during

pendency of the suit in the year 2011. Thereafter, the present petitioners were not substituted in place of the said deceased defendant, but the suit was

proceeded with and ultimately decreed in the year 2016.

Challenging the decree on the ground of nullity, having been passed in the name of a dead person, the present petitioners took out an application under

Section 47 of the Code of Civil Procedure, giving rise to Miscellaneous Case No. 143 of 2017. By virtue of the impugned order, such miscellaneous

case was dismissed. The petitioners submit that the findings of the trial court, while dismissing the said application, were de hors the law.

Alleged suppression of death and obtaining the decree by forging the signature of a dead person, were all a product of conjecture and surmise, without

there being any discussion in the impugned order, or materials on record, to substantiate the same. In any event, since the decree was passed in the

name of a dead person, the same ought to have been set aside under Section 47 of the Code of Civil Procedure. Accordingly, the petitioners submit

that the impugned order cannot stand of moment’s scrutiny.

It is argued on behalf of the decree- holder/opposite party no. 1 that the conduct of the petitioners was deplorable, more so, since the factum of death

of defendant no. 2 was deliberately suppressed. It is further submitted that the present petitioners were fully in the know of the suit, since summons in

the name of the defendant no. 2 were received by some of them. It is further submitted on behalf of opposite party no. 1 that in view of the petitioners

having come with unclean hands, the present application under Article 227 of the Constitution of India ought to be dismissed.

It is seen from the impugned order that the executing court undoubtedly proceeded on the basis of conjecture as to alleged forgery of signature and

suppression of death. If the fact of death of defendant no. 2 was suppressed by the other surviving defendants, no direct liability could be fixed on the

present petitioners, who were never in the picture, for such suppression. As such, since the eviction decree, passed in the name of a dead person,

would otherwise be a nullity, the executing court refused to exercise jurisdiction vested in it by law in dismissing the application under Section 47 of the

Code of Civil Procedure without going into the relevant issues on merit.

However, there is a small window for the opposite party no. 1 to resist the application under Section 47 of the Code of Civil Procedure, filed on the

ground of nullity. The same is by establishing that the present petitioners were not “tenants†in respect of the suit premises as contemplated in the

West Bengal Premises Tenancy Act, 1997 upon the death of their predecessorin-interest, that is, the defendant no. 2 in the suit.

Accordingly, C.O. No. 1529 of 2018 is allowed by setting aside the impugned order and directing the Fourth Bench, Presidency Small Causes Court at

Calcutta to re-hear Miscellaneous Case No. 143 of 2017 on the aspect as to whether the petitioners have any locus standi under the West Bengal

Premises Tenancy Act, 1997 to be termed as “tenants†on the death of defendant no. 2 in the connected suit. In the event, it is found by the

executing court that the petitioners do not come within the yardsticks of “tenants†under the said Act, the executing court will be free to decide

the question as to whether the suit had at all abated on the death of defendant no. 2, rendering the decree passed in the name of such deceased

defendant a nullity. Thereafter, the executing court will decide Miscellaneous Case No. 143 of 2017 in accordance with law in the light of the

observations made herein.

The entire exercise will be completed by the executing court within three months from the date of communication of this order to the said court. There

will be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all

requisite formalities.