Bhagesh Chandra vs Laxman Das

Shiv Kumar Sharma, J.—The question that falls for consideration in this revision is whether a decree passed against a dead person without impleading his legal representatives, is a nullity?

This question emerges from the circumstances set out herein below:

(i) Suit for eviction was decreed in favour of petitioner decree-holder Bhagesh Chandra (for short ''decree-holder'') and against Laxman Das on April 20, 1995. Indisputably Laxman Das had died on March 28, 1995 but his legal representatives were not brought on record.

(ii) Execution proceedings were initiated by decree-holder for executing the said decree against Laxman Das, Mahesh and Vidya Devi filed objection petition before the executing Court to the effect that decree being passed against a dead person, without bringing his legal representatives on record, was a nullity and could not have been executed. The petition was opposed by the decree-holder.

(iii) The executing Court vide order dated March 22, 1996 allowed the objection petition and after observing that decree was a nullity, dismissed the execution proceedings.

(iv) The decree-holder being aggrieved, has preferred this revision.

The learned Counsel for the decree holder submitted that the view taken by the executing Court was erroneous and it had failed to exercise its jurisdiction to execute the decree. Learned Counsel placed reliance on Mustt. Rahima Khatun and Others Vs. On the death of Samser Ali his L. Rs. Mustt. Amrun Nahar and Others, and Bhagirath Mal Vs. Bhagwan Dutt,

The learned Counsel for the present opposite parties, on the other hand canvassed that decree was passed against a dead person was a nullity and the executing Court had rightly declined to execute the same. He placed reliance on Sub-Divisional Jhalawar v. Madan Lal, 1984 RLW 347.

In Rahima Khatun''s case (supra) revision petition was filed by one Samser Ali u/s 115, CPC before the Gauhati High Court. He was the sole defendant petitioner. He had died on September 2,1982. The Gauhati High Court was not informed of the death of Samser Ali. After hearing the Counsel for both the parties the High Court without having any knowledge of the death of Samser Ali, dismissed the revision petition on September 3,1982. The revision filed by Samser Ali arose from the ejectment decree passed against him by the trial Court and confirmed by the appellate Court. The. High Court dismissed the revision holding that Samser Ali was a defaulter and three months time was granted to him to vacate the suit premises. When premises were not vacate during that period, the decree-holders initiated proceedings. In those proceedings a petition was filed by the legal representatives of Samser Ali seeking dismissal of execution proceedings on the ground that decree being passed against a dead person was a nullity. The executing Court dismissed the execution proceedings on the ground that decree was a nullity. The decree-holder thereafter preferred revision petitioner before the Gauhati High Court and submitted that decree was passed by the trial Court against Samser Ali when he was alive. Samser Ali himself filed appeal and revision. Samser Ali was the sole petitioner in the earlier revision. The order dismissing the revision petition was not a decree. The High Court having declined to modify or set aside the decree passed by the Courts below, the same remained in operation and could hence be executed. It was held by the Gauhati High Court that death of Samser Ali did not affect the revisional power. The appellate Court''s order did not merge in the order passed in revision therefore, it was executable.

Ratio of Rahima Khatun''s case is not applicable in the case on hand. Here the decree was passed on April 20, 1995 against Laxman Das who has already died on March 28, 1995, wherein in Rahima Khatun''s case, Samser Ali himself contested the suit filed appeal and revision. The decree of the trial Court and appellate Court was passed against Samser when he was alive, Samser Ali died a day before the order in revision was passed. The decree of the Courts below was not modified or set aside by the High Court in revision. Therefore, the decree was not held as nullity.

Ratio of Bhagirath Mal''s case (supra) is also not applicable. In Bhagirath Mal''s case it was propounded by the Court that decree against a dead person is not a nullity when deceased defendant had not filed written statement and had not made real appearance during pendency of trial and in fact the trial Court proceeded against him ex parte. The appeal against such decree, cannot also be dismissed for not bringing L.Rs. of deceased defendant or record. In the case on hand neither such ground has been raised in the revision petition nor canvassed before me by the learned Counsel for the decree-holder that Laxman Das did not file written statement before the trial Court and that he was in fact proceeded ex parte. .

In Jangli v. Deputy Director of Consolidation, (1982) 1 SCC 478 the Supreme Court observed thus:

It appears that on September 11, 1950 when the decree was passed Ganesh was dead and there is nothing to show that the appellants who are his heirs were brought on record before the decree was passed. The decree was, therefore, clearly null and void.

Sub-rule (4) in Rule 4 of Order XXII was inserted by the CPC (Amendment) Act, 1976 with effect from February 1,1977. Under the said sub-rule (4) of Rule 4 of Order XXII, a defendant who has been set ex parte in the suit is not required to be substituted by his legal representatives and the decree against him would have the same force and effect as if it has been pronounced before death took place. But a judgment cannot be passed ex parte even against deceased defendant unless an exemption is first granted under this sub-rule. In the instant case firstly, no material has been placed to show that Laxman Das proceeded ex parte and secondly if he was proceeded ex parte the trial Court granted exemption under Sub-rule (4). Therefore, provisions of Order XXII, Rule 4(4) are not attracted.

Therefore, applying the ratio Jangli v, Deputy Director (supra) 1 hold that the decree passed against Laxman Das was a nullity and was in executable. The execution Court thus, did not commit any jurisdictional error in dismissing the execution proceedings.

The revision,, therefore, fails and is hereby dismissed with costs.