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Mohd. Safdar Shareef & Others v. Mohammed Ali & Another

Andhra Pradesh High Court

Mar 3, 1993

Judgment

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Structured Summary of the Opinion — Letters Patent Appeal (LPA)

Factual and Procedural Background

This Letters Patent Appeal arises from a suit (O.S. No. 31 of 1969) filed by a respondent who claimed to be the Mutuvalli of the Masjid-e-Kalam (Musheerabad, Bakaram Village) seeking possession of a plaint schedule property (3150 sq. yards) as a service Inam. The suit named appellant Nos. 1 to 4 (who later died) and, subsequently, appellant Nos. 5 to 11 were brought on record.

The plaintiff alleged that the first defendant originally occupied 1939 sq. yards and later occupied adjacent land to make up the total 3150 sq. yards; the suit sought possession, mesne profits and costs against all defendants. The third defendant’s written statement stated the land in their possession comprised 1932 sq. yards granted to Mohd. Abdulla Shareef by registered Nuzulnama and described family circumstances.

The trial Court dismissed the suit on the ground that the plaintiff was not the Mutuvalli. The plaintiff appealed (C.C.C.A. 74/77) and, during the pendency of that appeal, the second defendant (Mohd. Yousuf Shareef) died on 21-09-1980 and his legal representatives were not brought on record. The learned single Judge allowed the appeal and decreed the suit, holding that the plaintiff was the Mutuvalli. Aggrieved, the surviving defendants and some legal representatives filed this Letters Patent Appeal.

Legal Issues Presented

Whether a Division Bench hearing a Letters Patent Appeal can set aside the Judgment and remand the matter to the learned single Judge solely to enable appellants to bring the legal representatives of a deceased respondent on record and for the appellate Court to dispose of the appeal afresh.
Whether the appeal before the learned single Judge abated by reason of the death of a party whose legal representatives were not brought on record, thereby rendering the decree passed by that Judge a nullity.
Whether, where the subject matter and decree are joint and indivisible among defendants, the appellate proceedings can continue in the absence of the legal representatives of a deceased party, or whether the whole appeal abates.

Arguments of the Parties

Appellants' Arguments (as summarized in the opinion)

The decree passed by the learned single Judge is a nullity because the legal representatives of the deceased second respondent were not brought on record after his death; accordingly, the entire appeal before the learned single Judge abated.
Relied on precedent holding that where joint interest or a joint decree exists, absence of one co-owner or joint decree-holder makes the appeal incompetent or causes abatement (cited State of Hyderabad v. Mohammed Afzal and other authorities).
Invoked Order XXII, Rule 4 of the Civil Procedure Code (as applied in cited cases) to contend that the appeal has abated and must be dismissed.

Respondents' Arguments (as summarized in the opinion)

The defendants currently on record represent the estate of Mohd. Abdulla Shareef and therefore it was not necessary to bring the legal representatives of the second defendant on record.
Distinction should be drawn between (a) the original party dying and (b) one of several legal representatives dying; in the latter, remaining representatives may adequately represent the estate (relying on Muthuraman v. Adaikappa decisions).
All necessary parties are now before the Court and, if needed, the legal representatives of the second defendant could be impleaded now and the matter remitted to the learned single Judge after setting aside the judgment (relying on Srinivasulu Chetti v. Guraviah and cases where High Courts in second appeals remitted matters to enable impleading legal representatives).
Relied upon Rule 10A of Order XXII CPC and Gangadhar v. Raj Kumar to argue that, where a pleader comes to know of the death of a party, the pleader must inform the Court and the Court should give notice; if the other side did not know of the death, substitution applications made promptly on discovery may be allowed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Hyderabad v. Mohammed Afzal, AIR 1968 A.P. 47	Principle that joint interest in subject-matter makes compensation/relief indivisible and absence of a co-owner affects the competence of the appeal.	The Court relied on the case to support the proposition that absence of one of several interested parties may make an appeal incompetent and contribute to abatement where subject-matter is common.
State of Punjab v. Nathu Ram, AIR 1962 Supreme Court 89	Where the subject matter is common and the decree joint, appeal against one when another joint decree-holder’s appeal has abated is not properly constituted.	The Court cited this authority to show that an appeal cannot proceed against only some joint decree-holders when another joint decree-holder is absent, supporting abatement.
B.S. Singh v. R.D. Singh, AIR 1973 Supreme Court 204	A plea that an appeal abates as a whole under Order XXII, Rule 4 CPC when the relief is joint and no separate claim is made against individual defendants.	The Court used this authority to confirm that where a joint claim exists and no separate claim is made, the appeal abates under Order XXII, Rule 4.
Venkata Rama Rao v. Narayana, AIR 1963 A.P. 168	Order XXII CPC provides a complete code; Rules 3, 4 read with Rule 11 make the suit/appeal abate where mandatory substitution procedure is not followed.	The Court invoked this to emphasise that Order XXII is mandatory and that abatement occurs where substitution is not effected within the rules, supporting the abatement finding.
Muthuraman v. Adaikappa, AIR 1934 Madras 730; AIR 1936 Madras 336	Doctrine that in some cases remaining representatives may adequately represent the estate (representation of estate by some heirs).	The respondents relied on these authorities to argue that remaining defendants represented the estate; the Court considered but distinguished this approach given the joint/indivisible nature of the decree.
Srinivasulu Chetti v. Guraviah, AIR 1927 Madras 505	Permissibility of impleading legal representatives and then proceeding with the suit/appeal.	The respondents cited this to argue for impleading representatives and remitting the matter; the Court declined to adopt the remedial route relied upon in that precedent in the present factual and procedural posture.
Ram Sain v. Bhagirath, AIR 1972 H.P. 65; Hayalappa v. Hyalappa, AIR 1972 Mysore 266	High Court in second appeals remitted matters to appellate courts to enable parties to implead legal representatives and then decide afresh.	The Court noted these were second appeal contexts and expressly declined to follow such procedure in a Letters Patent Appeal against the learned single Judge’s judgment.
Gangadhar v. Raj Kumar, (1984) 1 SCC 121; AIR 1983 SC 1202	Rule 10A Order XXII CPC imposes duty on pleader who knows of a client's death to inform Court; equitable relief where parties lacked knowledge and substitution was sought promptly.	The Court considered Gangadhar but held it not applicable because in that case substitution was sought while the appeal was pending before the High Court; in the present matter the appeal was allowed and a decree granted without impleading legal representatives, so the reasoning did not assist the respondents.

Court's Reasoning and Analysis

The Court began by formulating the principal question: whether a Division Bench can set aside the learned single Judge’s judgment and remit the matter solely to enable impleading of legal representatives of a deceased respondent.

The Court examined the pleadings and procedural chronology and concluded that the plaint sought a common decree for possession and profits against all defendants; the defendants asserted joint possession/occupation (1932 sq. yards as per their pleadings). Given the common subject-matter and the plaintiffs' claim for a common decree, the Court found the decree to be joint and indivisible.

Applying established authorities (including State of Hyderabad v. Mohammed Afzal, State of Punjab v. Nathu Ram, B.S. Singh v. R.D. Singh and Venkata Rama Rao v. Narayana) the Court reiterated the settled proposition that where the appeal cannot properly proceed in the absence of the legal representatives of a deceased co-party, the appeal abates as a whole. The foundational policy articulated is to avoid producing inconsistent or contradictory decrees in the same litigation regarding the same subject-matter.

The Court next addressed the respondents’ counter-arguments: that remaining defendants represented the estate (invoking Muthuraman decisions), that legal representatives could now be impleaded and the decree set aside and remitted, and that Rule 10A required counsel to inform the Court on learning of a client’s death (citing Gangadhar).

The Court distinguished each submission:

On representation: although some authorities support representation of an estate by remaining heirs in certain circumstances, the Court found the present case involved an indivisible, common interest and a joint decree; therefore representation by the remaining defendants did not obviate necessity for substitution.
On remittal and setting aside the decree: the Court observed that the Letters Patent Appeal did not arise out of a second appeal context (in which some precedents remitted matters to enable impleading), and held that because the appeal before the learned single Judge had abated and the decree was a nullity (a decree against a dead person), there was no decree properly in existence to set aside and remit for substitution.
On Rule 10A and Gangadhar: the Court acknowledged Rule 10A’s purpose—to mitigate hardship where parties are unaware of a death and to impose a duty on pleaders who learn of the death—but found Gangadhar distinguishable because in that case substitution was sought while the appeal was pending; in contrast, here the learned single Judge allowed the appeal and granted a decree without substitution, and thus Gangadhar did not assist the respondents.

The Court further discussed the legal meaning of “abate” and concluded that abatement by operation of law renders the appeal incapable of revival and the decree a nullity. Consequently, it held that the appeal before the learned single Judge had abated and that the decree was a nullity.

On that basis the Court concluded that there was no room to set aside a nullity and remit the matter merely to enable substitution of legal representatives. The proper outcome was to set aside the single Judge’s decree (because it was a nullity) and dismiss the suit.

The Court then addressed C.R.P. No. 2764 of 1988 (a civil revision): petitioners (plaintiffs in O.S. No. 767/87) sought declaration that the High Court decree in C.C.C.A. No. 74/77 was without jurisdiction and not binding on them; they sought injunction against execution. The trial judge had refused injunction as the decree was lawful, but granted injunction in respect of 7 items. The appellate City Civil Court judge reversed aspects and directed following Order 21 Rule 36 CPC procedures. Following the Court’s LPA finding (that the C.C.C.A. had abated), the Court allowed the civil revision, noting there was no question of executing the decree in O.S. No. 31/69 in view of the LPA decision.

Holding and Implications

Holding: The Letters Patent Appeal is allowed; the decree of the learned single Judge is set aside and the suit is dismissed. The Court found that the appeal before the learned single Judge had abated by reason of the death of a party whose legal representatives were not brought on record and that the decree passed in that appeal was a nullity. The appeal cannot be revived and the decree cannot be breathed back into life.

For C.R.P. No. 2764 of 1988, the Court applied its LPA finding and allowed the civil revision, concluding there is no question of executing the decree in O.S. No. 31/69.

Implications:

Direct effect: The single Judge’s decree is treated as a nullity and the suit is dismissed; the Civil Revision is allowed, preventing execution of the High Court decree in O.S. No. 31/69 against the petitioners in C.R.P. No. 2764/1988.
Procedural consequence: Where a joint and indivisible claim/decree is involved, failure to bring legal representatives of a deceased party on record results in abatement of the appeal as a whole; such abatement cannot be remedied by merely setting aside a nullity and remitting for substitution in the Letters Patent Appeal context (as opposed to certain second appeal contexts).
No costs were awarded in the LPA and none in the Civil Revision; the Court explicitly noted “without costs.”
The opinion distinguishes cases (including Gangadhar and second-appeal remittal cases) on their facts and procedural posture; it does not purport to create a new precedent beyond applying existing principles of abatement and Order XXII CPC.

This summary is confined strictly to the information contained in the provided opinion and does not introduce any facts, holdings, or interpretations beyond that text.

Show all summary ...

P. Ramakrishnam Raju, J.:— The question involved in this Letters Patent Appeal is, whether a Division Bench hearing the Letters Patent Appeal can set aside the Judgment and remand the matter to the learned single Judge to dispose of the appeal which is the subject-matter of the L.P.A solely for the purpose of enabling the appellants to bring the legal representatives of one of the respondents, on record and to deal and dispose of the appeal afresh?

2. The facts which give rise to this L.P.A are briefly stated hereunder. The respondent claiming to be the Mutuvalli of the Masjid-e-Kalam of Musheerabad, Bholak-pur Village, Bakaram Taluq and Urban District, Hyderabad, filed O.S No. 31 of 1969 on the file of the IV Additional Judge, City Civil Court, Hyderabad against the appellant Nos. 1 to 4. Since appellant Nos. 1 to 4 died, appellant Nos. 5 to 11 were brought on record. The plaintiff's case is that the plaint schedule property which is an extent of 3150 Sq. yards in Survey No. 247/1 of Bakaram Village is a service Inam in respect of the said Masjid and he is the Inamdar. Originally, the first defendant occupied an extent of 1939 Sq. yards, but later he occupied the adjacent land also making the total to 3150 Sq. yards. As the first defendant has stated that the land is in occupation of all the four defendants, the plaintiff filed the suit against all the defendants for possession together with mesne profits and costs. The third defendant filed written statement contending that only an extent of 1932 Sq. yards of site was in their occupation being the land granted by late Haji. Mohd. Vazir Ali to his late brother Mohd. Abdulla Shareef covered by three plots bearing Nos. 18, 22 and 28. Their brother was the owner of the said land on payment of Nazool quit rent at the rate of six pies per Sq. yard per annum as per registered Nuzulnama dated 9th Thir, 1352 F. It is also their case that their brother Abdulla Shareef constructed a tiled house in one of the said plots and obtained Municipal Number also after paying the compound fee. Abdulla Shareef died in 1958 leaving the four brothers, his widow and two sisters, his widow and another brother, Mohd. Adam Shareef died leaving three brothers and two sisters.

3. They resisted the suit among other grounds that the suit is not maintainable since the plaintiff is not Mutuvalli. The trial Court accepted this contention and dismissed the suit. The respondent filed C.C.C.A 74/77. It is the admitted case that the second defendant by name Mohd. Yousuf Shareef died on 21-09-1980 while C.C.C.A 74/77 filed by the respondent was pending. It is also admitted that the legal representatives of the said second defendant were not brought on record. However, the learned single Judge allowed the appeal and decreed the suit holding that the first respondent-plaintiff is the Mutuvalli. Aggrieved by the said decree and judgment, the surviving defendants and some legal representatives of the other defendants filed this Letters Patent Appeal.

4. Sri R. Venugopal Reddy, the learned Senior Advocate appearing for the appellants vehemently contended that the decree passed by the learned single Judge is a nullity inasmuch as the legal representatives were not brought on record after the death of the second respondent and so, the whole appeal before the learned single Judge abated. He relied upon a decision reported in State of Hyderabad v. Mohammed Afzal (1), AIR 1968 A.P 47, wherein a Division Bench of this Court held as follows:—

“The principle that every joint owner of the land is the owner of every cent of the land is well known and in the circumstances, it is obvious that the compensation awarded would be to apply this analogy for each party, so that if any one of the owners is absent or is not a party or ceased to be a party, the compensation for that piece would not represent the compensation to that parcel of the land. A perusal of the decree passed by the District Judge would show that the compensation was awarded for the entire land at a particular rate and though, because all of them are agreed the compensation was directed to be divided amongst the share holders, nonetheless in fact and in reality the compensation was one which was for the subject matter of the appeal, namely, the entire makhta land comprising survey numbers 34/1 and 34/2. As we have already pointed out, the 6th respondent is interested in both the survey Nos. 34/1 and 34/2. In the circumstances, any abatement of appeal against him would make the appeal as against the other claimants incompetent.”

5. In similar circumstances, the Supreme Court in State Of Punjab v. Nathu Ram (2) AIR 1962 Supreme Court 89, held as follows:

“The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed”.

6. In a later case reported in B.S Singh v. R.D Singh (3) AIR 1973 Supreme Court 204, the Supreme Court observed as follows:

“Now the question is whether the appeal has abated or not. As seen earlier in the plaint a joint claim is made against all the defendants. The first appellate Court, as mentioned earlier, decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In this Court relief asked for was against all the defendants. No separate claim was made against any of the defendants, under these circumstances, quite clearly the appeal has abated as a whole under Order XXII, Rule 4 of the Civil Procedure Code. The appeal is accordingly dismissed”.

7. The Learned Counsel has also cited a decision reported in Venkata Rama Rao v. Narayana (4) AIR 1963 Andhra Pradesh, 168 wherein, a Division Bench of this Court considered a similar question, namely, whether the appellate court has the power to proceed with the hearing of the appeal when one of the plaintiffs or defendants dies and no substitution is effected within time contemplated under Order 22 Rule 3, C.P.C The Supreme Court observed as follows:

“Thus it will be seen that Order 22 C.P.C provides a complete code to deal with questions which arise by reason of the death of one of the parties to a suit or appeal. That these rules are mandatory can admit of no doubt, for, as has been pointed out earlier, the death of a person takes away the jurisdiction vested in the Court to pass a decree and, in terms of Rules 3 and 4 read with Rule 11 of Order 22, the suit or appeal abates, and, on abatement or on dismissal under Rule 8, no fresh suit shall be brought on the same cause of action as provided in Rule 9(1) unless the abatement is set aside on an application made under sub-rule (2) of the said rule within the period of limitation.”

8. It is further observed that it is well settled and uniformly held by all the Courts in India that an appeal will abate as a whole if the case is of such nature that the appeal cannot proceed in the absence of the legal representatives of the deceased appellant. The basis of this rule is that to decide an appeal without bringing the legal representatives on record in a case of that nature, will produce two inconsistent and contradictory decrees in the same litigation with respect to the same subject-matter.

9. Now, therefore, the next question to decide is, whether the subject matter is common to all the defendants and whether the decree is joint and indivisible.

10. A reading of the plaint clearly shows that a common decree for possession and profits is sought for against all the defendants. Therefore, the decree in question is joint and indivisible. Even according to the averments of the written statement, the defendants contend that they are jointly in possession and enjoyment of 1932 Sq. yards of site. Therefore, it is clear that any decree that may be passed against some of the defendants would be inconsistent with a decree of dismissal of the suit in respect of the other defendants. Therefore, the appeal before the learned single Judge has abated.

11. However, Sri K.F Baba, learned Advocate for the respondents maintained that as per the averments of the written statement, Mohd. Abdulla Shareef, brother of the defendants was granted three plots bearing Nos. 18, 22 and 28 of an extent of 1932 Sq. yards and he has constructed a house and after his death, the defendants came into possession, it is not necessary to bring the legal representatives of the second defendant inasmuch as the other defendants on record represent the estate of Mohd. Abdulla Shareef. He also further contend that a distinction should be drawn between the cases in which the original party dies and cases in which one of several legal representatives dies. He relies on a decision reported in Muthuraman v. Adaikappa (5) AIR 1934 Madras 730 wherein, it was observed as follows:—

“Whatever the position may be as regards that first group of cases, I am of opinion that in the second group there is no lack of representation of the estate, that the remaining representatives can as well represent the estate as the original group did, and that the principle applicable to this class of cases is to be gathered from those decisions which uphold the doctrine of representation of an estate by some of the heirs of a deceased person when such heirs are sued as defendants in the first instance.

12. For a similar purpose, he relied upon another decision reported in Muthuraman v. Adikappa (6) AIR 1936 Madras, 336.

13. The learned Counsel for the respondents, relying upon a decision reported in Srinivasulu Chetti v. Guraviah (7) AIR 1927 Madras, 505, submitted that inasmuch as all the necessary parties are before the Court now, the legal representatives of the second defendant may be impleaded now and the matter may be remitted back to the learned single Judge after setting aside the judgment under appeal. A similar view was taken in cases reported in Ram Sain v. Bhagirath (8) AIR 1972 H.P 65 and Hayalappa v. Hyalappa (9) AIR 1972 Mysore 266. These are the cases which came up to the High Court by way of second appeal. The High Court allowed the second Appeals and remitted the matter back to the appellate Court in order to enable the appellant to implead the legal representatives and then dispose of the matter according to law.

14. We may observe that we cannot follow the same procedure in this case. The Letters Patent Appeal does not arise out of the second Appeal, but, it is an appeal against the Judgment of the learned single Judge. Further, as we are of the view that since the suit itself has abated and the decree has become a nullity, there is no question of setting aside such a decree and enable the respondents to implead the legal representatives of the deceased respondent. No question of setting aside of the decree which is a nullity arises.

15. The meaning of the word ‘abate’ as per Law Lexicon of Venkataramaiaya's, is “to throw down, to beat down, destroy, quash; to do away with; to put an end to, to nullify, to make void.” In view of this meaning, the appeal which has abated by operation of law, cannot be revived and the decree which has become a nullity being a decree against a dead person, cannot also be revived. Therefore, the inescapable result of the above discussion is that the appeal before the learned single Judge has abated and the decree passed by him is a nullity.

16. The learned Counsel for the respondent has submitted that the respondent was not aware of the death of the second respondent while the appeal was pending before the learned single Judge and therefore, an opportunity must be given to him to file an application to bring the legal representatives of the second respondent in this Letters Patent Appeal. He also contended that it is the duty of the Counsel for the respondents therein (appellants herein) to bring it to the notice of the Court about the death of the second respondent and reliance has been placed upon Rule 10A of Order XXII C.P.C

17. Rule 10A of Order XXII C.P.C may be usefully extracted here:—

“10A:— “Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.”

18. In this connection, the learned Counsel for the respondent relied upon a decision reported in Gangadhar v. Raj Kumar (10) (1984) 1 SCC 121 : AIR 1983 Supreme Court 1202, wherein the Supreme Court observed as follows:

“This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end, one cannot expect the other party to be a watchdog for day to day survival of the other party. When the appeal on being notified for hearing is a activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovating provision has been introduced, whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client.”

19. In this case, when the second Appeal was pending before the High Court of Madhya Pradesh, the sole respondent died on 19-04-1980. His adopted son filed I.A No. 1980/81 to be impleaded in the appeal as respondent on 1-07-1981. On the basis of this information, the appellants filed I.A No. 2110/81 on 15-7-1981 for impleading the legal representatives of the deceased. It is also stated in the said application that they came to know about the death of the respondent only when the alleged adopted son filed an application I.A No. 1980/81 on 1-07-1981. The High Court dismissed the application on the ground that the application was filed beyond 90 days after the death of the deceased and the appeal has abated. Questioning this order, a Special Leave application was filed in the Supreme Court. The Supreme Court, no doubt observed that in order to see that the administration of justice is not thwarted by such technical procedural lapse, Rule 10A C.P.C an innovating provision has been introduced, whereby a duty is cast on the learned advocate appearing for the party who comes to know about the death of the party to intimate the Court about the death of the party represented by him. The Supreme Court noticing the fact that the application No. 1980/81 for substitution was made on 1-7-1981 for the first time more than one year after the death of the deceased and the appellants moved I.A No. 2110/81 within 15 days from the date of knowledge of the death of the deceased and in that view, held that when the appellants are not aware or had no knowledge about the death of the deceased, the application filed by the appellants to bring the legal representatives on record, cannot be rejected. It may be also noticed that this application was filed when the appeal was pending before the High Court. Therefore, the Supreme Court observed that the High Court should have allowed the application and bring the legal representatives on record instead of dismissing the application on the technical ground that the application was filed beyond 90 days of the death of the deceased. Therefore, this decision has no application to the facts of this case, where the appeal was allowed and a decree was granted setting aside the decree of the trial Court without impleading the legal representatives of the second respondent therein.

20. As the interest of the 2nd respondent in C.C.C.A 74/77 was indivisible from that of the others, the judgment rendered in the appeal being a nullity, the question of breathing life into that judgment would not arise and so we answer in the negative the point formulated at the threshold of the judgment.

21. For all these reasons, we are of the opinion that the decree of the single Judge has to be set aside and the suit dismissed. We accordingly, allow the appeal, but in the circumstances, without costs.

C.R.P No. 2764 of 1988:—

22. The petitioners in C.R.P are the plaintiffs in O.S No. 767/87 on the file of the IVth Additional Judge, City Civil Court, Hyderabad. They filed the suit for declaration that the decree passed in O.S No. 31/69 by the High Court in C.C.C.A No. 74/77 is without jurisdiction and not binding on them and for permanent injunction restraining the respondents from dispossessing them in execution of the said decree in O.S No. 31/69. They have also filed I.A No. 697/87 under Order 39 Rules 1 and 2 C.P.C for temporary injunction pending the suit. The petitioners allege that they have obtained the schedule land on rent from their landlords and they have constructed sheds and developed the property. The property originally belonged to Wakf Board. The first respondent obtained a collusive decree without making the petitioners as parties in O.S No. 31/69. Although the suit was dismissed by the trial Court, the High Court in C.C.C.A No. 74/77 allowed the appeal and granted a decree. The said Judgment and decree are not binding on them and that they cannot be evicted in execution of the said decree. The learned Additional Judge held that no injunction can be granted restraining the execution of the decree in O.S No. 39/61 which is a lawful decree passed by a competent Court. In respect of 7 items of properties of the plaint schedule in H. No. 1-4-840-842 covering about 1548 Sq. yards, injunction was granted. Aggrieved by the said order, the first respondent filed C.M.A No. 306/87 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The learned Judge allowed the said appeal, holding that the petitioners cannot resist the execution of the decree as they are claiming only under Mohd. Abdullah Shariff, who was said to be the original tenant. He also held that the petitioners cannot claim better rights than the original tenant and his brothers against whom a decree was passed. However, the learned Judge, observed that the proper course would be to follow the procedure prescribed under Order 21 Rule 36 of Civil Procedure Code without resorting to injunction. In this view, he reversed the order of the trial Court. Aggrieved by the said order, the petitioners preferred the above Civil Revision.

23. We have allowed L.P.A No. 160/85 which is filed against the decree and judgment in C.C.C.A No. 74/77 holding that the CCCA filed by the plaintiff has abated since the legal representatives of the second respondent were not brought on record. In view of the said Judgment, there is no question of executing the decree in O.S No. 31/69. Following the finding in L.P.A No. 160/85, the Civil Revision petition is allowed.

24. No costs.