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Judgment
Siddhartha Chattopadhyay, J. - By filing this application (CAN 247 of 2016) the applicants wanted to show that the order dated 05.01.2016 passed by this Court is required to be re called on the ground that there is a suppression of material fact and that the decree was passed against dead persons and accordingly the decree is a nullity. He contended that Gobinda Chandra Mondal who was a party defendant No. 3(e) in T.S. 130 of 1950 breathed his last on 24.01.2005. Amiyabati Saha defendant No. 3(m) was in the said suit but she was neither intimated nor contested the suit. In such circumstances, he has prayed for recalling the impugned order passed by this Court.
In course of hearing learned Counsel appearing on behalf of the opposite party did not dispute the death of said Gobinda Mondal. It has also been contended that Amiyabati Saha is no more in the world. According to him, they had not contested the suit before the learned Court below and so there was no necessity to implead them as a party. He further contended that Order 22, Rule 4 (4) of CPC does not say that non-substitution of the legal heirs of the said deceased will make a decree invalid or nullity.
Learned Counsel appearing on behalf of the applicant relied on decisions reported in AIR 2005 SC 3799, (Kishun alias Ram Kishun v. Bihari) and AIR 1970 Cal 99, (Kanailal Manna and Ors. v. Bhabataran Santra and Ors.). On perusal of the decision reported in case of Kishun v. Bihari, I find that the Hon''ble Apex Court held that the decree passed against a dead person is a nullity and proper course was to substitute his legal heirs.
On perusal of the judgement reported in case of Kanailal Manna v. Bhabataran Santra, I find that the Hon''ble Division Bench of this Court had also come to the same conclusion relying on the decision reported in Abdul v. Laxmishree Majumdar (AIR 1923 Cal 676) following the guide line given in the judgment reported in AIR 1923 Cal 676, Hon''ble Division Bench of this Court has remanded the case to the Court below.
In such circumstances, this Court has no option left with except to send the matter on remand to the learned executing Court to take an appropriate decision. With this direction, the CAN application is allowed and consequently the impugned order dated 05.01.2016 passed in C.O. 2822 of 2015 is hereby recalled. Accordingly the C.O. 2822 of 2015 is restored to its original number and be reheard.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.