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Case Number

C.R.P.S.R No. 42039 of 1998 and C.M.P.S.R Nos. 42041, 42042 and 43080 of 1998

Attorney(S)

Mr. R. Karuppan, Advocate for Petitioners.

Judges

K. Govindarajan, J.

Acts

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Smart Summary

Structured Summary of the Opinion: C.R.P.S.R No. 42039 of 1998

Factual and Procedural Background

The petitioners filed C.R.P.S.R No. 42039 of 1998 on 29.6.1998 seeking to set aside the judgment and decree in O.S No. 2094 of 1984 dated 8.8.1996. The Registry returned the papers requesting clarification on several points relating to maintainability and supporting documents. The Registry's queries included whether a revision under Article 227 of the Constitution could be filed by persons who were not parties in the lower court without first pursuing appeal remedies, against which proceedings the petition was filed, and the absence of certified copies of the judgment and decree and of a petition in E.P No. 818 of 1997. The Registry also observed that a stay petition may not properly seek to stay two proceedings in one petition.

The petitioners' counsel provided clarifications to the Registry, but the Court was not satisfied with those explanations and listed the matter for hearing on the question of maintainability. The petitioners also filed C.M.P.S.R No. 43080 of 1998 seeking dispensation of the certified copy of the judgment and decree.

On the merits, the petitioners stated they are heirs of the deceased defendant Subramania Pillai (who died on 30.1.1985 during the suit). The plaintiff had applied to implead one son, Kadirvelu, as legal heir; no objection was raised and that petition was allowed. The suit was thereafter decreed ex parte. The petitioners sought to set aside the decree in the High Court under Article 227 on the ground that not all legal representatives were impleaded and therefore the decree was a nullity and could not be executed.

Legal Issues Presented

Whether C.R.P. under Article 227 of the Constitution can be maintained by petitioners who were not parties in the lower court and who have not availed the remedy of appeal in the lower or appellate court.
Whether a revision petition under Article 227 can be entertained without producing certified copies of the impugned judgment and decree.
Whether the omission to implead all legal representatives of a deceased defendant renders the decree a nullity, thereby justifying interference under Article 227.
Whether Article 227 jurisdiction can be invoked to override the specific remedy available under Section 47 of the Code of Civil Procedure when the decree is alleged to be a nullity.
Whether the High Court should exercise suo motu power under Article 227 (as in Annapoorni v. Janai) to set aside a decree where an error of law is said to be apparent on the face of the record.

Arguments of the Parties

Registry's Objections (as recorded)

Questioned maintainability of a C.R.P under Article 227 filed by petitioners who were not parties in the lower court and who had not availed an appeal remedy.
Asked the petition to specify against which proceedings the C.R.P had been filed; noted preamble needed correction.
Noted absence of certified copy of the decree and judgment in O.S No. 2094 of 1984.
Noted absence of certified copy of petition in E.P No. 818 of 1997.
Observed the prayer needed revision as two proceedings may not be stayed in one stay petition.

Petitioners' Arguments (as recorded)

The petitioners contended they were not parties to the judgment and decree in O.S No. 2094 of 1984 and therefore could not reasonably be expected to file copies of that judgment and decree.
They stated they had applied for certified copies of the judgment and decree but had not yet been furnished the same, and because of urgency they proceeded to file the revision.
On the merits, the petitioners argued they were heirs of the deceased defendant and that because not all legal representatives were impleaded the decree was a nullity and could not be executed.
The petitioners relied on the decision in Annapoorni v. Janai and urged the Court to invoke Article 227 (including suo motu power) to set aside the judgment and decree for an apparent error of law on the face of the record.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Surinder Singh v. Central Govt., 1986 (4) S.C.C 670	It is mandatory for a petitioner seeking to quash an order to produce the impugned order; without the impugned order it is improper to quash an order in proceedings under Article 226.	The Court relied on this authority to sustain the Registry's objection that the revision could not be maintained without production of the judgment and decree; the petitioners' failure to file those documents rendered the revision unsustainable.
Mohd Sulaiman v. Mohd. Ismail, AIR 1966 S.C 792	Where, after due enquiry, persons are impleaded in bona fide belief that they are the only persons interested, those impleaded represent the whole estate and the decree will bind the entire estate.	The Court invoked this principle to hold that impleading one legal heir after bona fide enquiry can suffice to bind the entire estate, negating the petitioners' contention that non-impleading of all heirs made the decree a nullity.
Dolai Maliko v. Krushna Chandra, AIR 1967 S.C 49	Reinforces that omission of some heirs due to oversight or doubt does not alone make the decree invalid unless fraud or collusion is shown.	The Court cited this authority to support the view that mere non-impleading, without fraud or collusion, is not a ground to hold the decree invalid.
Harihar Prasad v. Balmiki Prasad, A.I.R 1975 S.C 733 (following AIR 1965 SC 1049)	Confirms the consensus that where legal representatives are brought on record after diligent and bona fide enquiry, there is no abatement and the decision binds the entire estate including those not brought on record.	The Court used this precedent to further underscore that the decree obtained after impleading bona fide heirs binds the whole estate and is not vitiated by the omission of other heirs in the absence of fraud/collusion.
Annapoorni v. Janai, 1995 (1) LW 141	An instance where the High Court exercised jurisdiction under Article 227 to correct an apparent legal error on the face of the record and altered rights accordingly.	The petitioners relied on this case to invite the Court to exercise Article 227 jurisdiction; the Court considered the decision but distinguished its facts and held it was not applicable to the present case.

Court's Reasoning and Analysis

The Court proceeded in two main strands: procedural sufficiency and merits.

Procedural sufficiency: The Court sustained the Registry's objection that the petitioners had not produced certified copies of the judgment and decree they sought to set aside. It applied the rule from Surinder Singh v. Central Govt. that a petitioner seeking to quash an order must produce the impugned order; without producing it, the Court cannot properly determine the reasons that impelled the authority to pass the order and therefore should not quash an order not produced. The Court also noted that the petitioners filed C.M.P.S.R No. 43080 to dispense with certified copies, but the supporting affidavit did not even state that they had applied for copies from the lower court and been denied; thus the petitioners had not taken necessary steps to obtain the certified copies. The Court observed that the impugned documents were necessary to appreciate the petitioners' contentions and without them the correctness of contentions could not be assessed.

Merits: On the substantive contention that the decree was a nullity because all legal representatives of the deceased defendant were not impleaded, the Court examined the factual matrix: one son (Kadirvelu) was impleaded after the plaintiff's application and no objection was raised; the suit was decreed ex parte. The petitioners produced a legal heir certificate dated 15.3.1985 which had been furnished to the brother of the petitioners (who had been impleaded). When questioned, counsel stated the certificate was given by the petitioners' brother. The Court found no allegation of fraud or collusion against the brother who was impleaded.

The Court applied established precedents (Mohd Sulaiman, Dolai Maliko, Harihar Prasad and related authorities) to the effect that where legal representatives are impleaded after diligent and bona fide enquiry, they represent the whole estate and the resulting decree binds the entire estate, including those not brought on record. In this factual context, mere non-impleading of some heirs did not render the decree a nullity.

The Court also addressed the availability of the specific remedy under the Code of Civil Procedure: if petitioners considered the decree a nullity and unenforceable, they could have approached the court below under Section 47 of the C.P.C. The Court emphasized that Article 227 is not intended to override specific statutory remedies and to destroy rights acquired under a valid decree; resorting to Article 227 in such a manner would amount to subverting the process of law.

The petitioners' reliance on Annapoorni v. Janai was examined. Although the Court acknowledged the correctness of the principle in that case (where the judge exercised Article 227 jurisdiction to correct an admitted factual/legal error on the record), it found the Annapoorni facts distinguishable and not applicable to the present matter.

Holding and Implications

Holding: The Court held that C.R.P.S.R No. 42039 of 1998 is not maintainable and accordingly rejected the petition.

The Court gave two independent bases for its decision:

Procedural basis: The petitioners failed to produce the certified copies of the impugned judgment and decree; their application to dispense with those copies did not show that they had taken steps to obtain them from the lower court—this procedural deficiency alone rendered the revision unsustainable.
Merits basis: On the substantive issue, because one heir had been properly impleaded after no objection and no fraud or collusion was alleged, the decree could not be treated as a nullity; existing precedents establish that impleaded heirs obtained after bona fide enquiry bind the whole estate. Article 227 could not be used to override the specific remedy under Section 47 C.P.C or to subvert statutory procedure.

Consequences and immediate effects:

C.R.P.S.R No. 42039 of 1998 is rejected.
C.M.P.S.R No. 42041, C.M.P.S.R No. 42042 and C.M.P.S.R No. 43080 of 1998 are also rejected.
The Court ordered no costs.
No broader or new precedent was announced; the Court applied existing authorities and distinguished the petitioners' reliance on Annapoorni. The decision affirms the established principles regarding production of impugned orders and representation of estates by duly impleaded legal representatives.

End of summary (based exclusively on the text of the provided opinion).

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S. Rajini And Another Petitioners v. The Idol Of Arulmigu Panchavaneswaraswamy Koil Devasthanam, Rep. By Its Executive Officer, Woriyur, Tiruchirapalli 620003 And Another. S

1. The Petitioners have filed the above C.R.P.S.R No. 42039 of 1998 to set aside the judgment and decree in O.S No. 2094 of 1984, dated 8.8.1996 The said C.R.P.S.R Number was filed on 29.6.1998 The Registry returned the papers to clarify the doubt about the maintainability. The following reasons are given by the Registry:-

(1) It may be stated how C.R.P under Article 227 of Constitution filed by the petitioners herein, who are not parties in the lower court, without availing appeal remedy in the lower/appellate court, is maintainable in High Court?

(2) It may be stated against which proceedings the C.R.P has been filed; preamble portion needs correction in this regard;

(3) certified copy of decree and judgment in C.C No. 2094 of 1984 not filed;

(4) certified copy of petition in E.P No. 818 of 1997 not filed;

(5) prayer needs revision in C.M.P.S.R No. 42041 since two proceedings may not be stayed in one stay petition.

2. The learned counsel appearing for the petitioners has clarified the position with respect to the doubts raised by the Registry. Not satisfied with the said clarification, it is posted before the Court to decide about the maintainability of the revision.

3. The first doubt that has been raised by the Registry is, since the petitioners want to set aside the judgment and decree in O.S No. 2094 of 1984, they cannot file the revision without even filing the copy of the same. The learned counsel has submitted that the petitioners are not parties to the said judgment and decree and so they cannot be expected to file the same. Further he has submitted that the petitioners applied for the judgment and decree but, so far, they have not been furnished to them, and, in view of the urgency they have filed the above revision. I am not able to accept both the submissions. It is well settled that without even filing the judgment and decree, they cannot maintain the Revision.

4. The Apex Court has held that it is mandatory on the part of the petitioner to produce the impugned orders when the petitioner is seeking to quash the impunged orders. Without producing the same, writ cannot be issued. The Apex Court in Surinder Singh v. Central Govt., 1986 (4) S.C.C 670 has held as follows:

“Normally whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution.”

In view of the above settled law the objection that has been raised by the office has to be sustained. Without even producing the copy of the judgment and decree, the petitioners cannot maintain the revision.

5. The petitioners have filed C.M.P.S.R No. 43080 of 1998 to dispense with the certified copy of the judgment and decree. In the affidavit filed in support of the petition it is not even stated that the petitioners have applied for the same and the court below has not furnished the same. Without taking any steps to get the certified copy of the judgment and decree, which the petitioners want to set aside, the petitioners cannot be allowed to file the above Revision. Further, to appreciate the case of the petitioners, those documents are absolutely necessary. Without producing the same, the correctness of the contentions cannot be looked into.

6. On merits the learned counsel appearing for the petitioners has submitted that the petitioners are the heirs of the deceased defendant Subramania Pillai. He died on 30.1.1985, pending the suit. The plaintiff filed an application to implead one son Kadirvelu as his legal heir. Since no objection was raised for the same, that petition was ordered. Subsequently the suit was decreed ex parte. At this stage, the petitioners have filed the above C.R.P.S.R Number before this Court under Article 227 of the Constitution of India to set aside the said judgment and decree on the ground that without impleading all the legal representatives, the decree has been passed and so it is nullity and it cannot be executed by the plaintiff. It is not the case of the petitioners that they have approached the court below in accordance with the provisions of the Code of Civil Procedure. If really the petitioners feel that the said decree is a nullity and it cannot be executed, they can approach the court below under Section 47 of the C.P.C For the reasons best known to the petitioners such a procedure is not adopted. The provisions contained under Article 227 of the Constitution of India is not meant to override the provisions under specific enactment and destroy the rights of the parties acquired under valid decree. Accepting such a claim would amount to allowing the process of law subterfuged.

7. Moreover, the suit is decreed after impleading one of the legal heirs of the deceased defendant and no fraud or collusion is alleged. The only objection of the learned counsel is that all the legal heirs of the deceased defendant have not been impleaded. In such circumstances it cannot be said that the said decree is a nullity. It is relevant to mention here that the petitioners have produced the legal heir certificate dated 15.3.1985 which is furnished to the brother of the petitioners, who has been impleaded as the legal representative of the deceased defendant. When this Court put a question to the learned counsel as to how the petitioners got the said certificate, the learned counsel has submitted that the same was given by the brother of the petitioners. Even from the abovesaid fact, the petitioners cannot allege any act of fraud against their brother. The Apex Court while dealing with similar situation in Mohd Sulaiman v. Mohd. Ismail, AIR 1966 S.C 792 has held as follows:-

“In either case, where after due enquiry certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are bought on the record or impleaded, and the decree will be binding upon the entire estate”

The abovesaid decision has been followed in Dolai Maliko v. Krushna Chandra, AIR 1967 S.C 49 where in it has been held as follows:-

“This is not to say that where heirs of an appellant are to be brought on record and all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist”.

Again, in Harihar Prasad v. Balmiki Prasad, A.I.R 1975 S.C 733, following A.I.R 1965 S.C 1049, the Apex Court has held as follows:-

“As pointed out by this Court in 1965 (I) SCR 231: AIR 1965 SC 1049 the almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record”

8. The learned counsel has relied on the decision in Annapoorni v. Janai, 1995 (1) LW 141 and submitted that this Court should invoke suo motu power under Article 227 of the Constitution of India to set aside the judgment and decree of the lower court, in view of the fact that the decree suffers from error of law apparent on the fact of record. In the above said decision the plaintiff filed a suit for declaration of her title to the property on the ground that the suit property was purchased from out of her own earnings and the plaintiff is a class I heir under the Hindu Succession Act. That was resisted by the defendant challenging the status of the plaintiff as wife of the deceased. The suit was decreed ex parte and the defendant filed an application to set aside the ex parte decree. That was allowed. Again when the suit was posted for trial the defendant remained ex parte and again the suit was decreed ex parte. A third party filed a suit against the plaintiff and the defendant for declaration of his title to the suit property and recovery of possession. That suit was dismissed long after the disposal of the earlier suit. The plaintiff took execution proceedings for delivery of possession pursuant to the decree obtained by her. That was resisted by the defendant. When the civil revision petition was being heard, a new argument was raised saying that even the defendant who is the mother of the husband of the plaintiff is also class I heir and therefore the decree declaring the plaintiff's exclusive title-cannot be sustained. In view of the undisputed fact, after perusing the records, Srinivasan, J., as he then was held that the defendant is also entitled to one half of the property as class I heir and has declared that one half of the defendant's right in the suit property and directed to pass a final decree on that basis. The learned Judge has rightly exercised the jurisdiction under Article 227 of the Constitution of India in that case in view of the admitted facts. There cannot be any doubt about the principle laid down in the abovesaid decision. The abovesaid decision cannot be made applicable to the case on hand.

9. In view of the above findings, it cannot be said that the decree passed with respect to the property in question by impleading one son alone cannot be said to be nullity. In such circumstances, the question of invoking the jurisdiction under Article 227 of the Constitution either suo motu or at the instance of the petitioners will not be said that the said decree passed by the court below on the face of it is illegal or erroneous or without jurisdiction. The abovesaid discussions are sufficient to dissuade me from extending the indulgence under Article 227 of the Constitution of India in favour of the petitioners.

10. For the foregoing reasons, I am of the view that the C.R.P.S.R No. 42039 of 1998 is not maintainable both for want of certified copies of the judgment and decree and also on merits, and the same is accordingly rejected. No costs. Consequently, C.M.P.S.R No. 42041, 42042 and 43080 of 1998 are also rejected.

S. Rajini And Anothe... v. The Idol Of Arulmigu...