N. Krishnaswamy Reddiar and Others vs Manickavasagam

Thangamani, J.—The first review petitioner Krishnasamy Reddiar along with his brother deceased Ramaswamy Reddiar filed O.S. No. 22

of 1982 against the present respondent Manickavasagam in the Court of District Munsif of Musiri and obtained a decree ex parte on 1.12.1986,

Ramaswamy Reddiar died on 4.6.1985 prior to the decree. In E.P. No. 236 of 1988 the first review petitioner sought to execute the decree.

Subsequently he filed E.A. No. 943 of 1988 under Order 21, Rule 16 and Section 151, C.P.C. for impleading present review petitioners 2 and 3

who are wife and daughter of Ramaswamy Reddiar L.Rs. of the said Ramaswamy Reddiar in the abovesaid E.P. On 17.11.1993 Learned District

Munsif allowed the application. The respondent herein challenged the same before this Court in C.R.P. No. 148 of 1994. Learned single Judge in

his order dated 17.2.1994 allowed the C.R.P. and set aside the order in E.A. No. 943 of 1988 and dismissed that application for impleading the

present petitioners 2 and 3 as L.Rs. of deceased Ramaswamy Reddiar. The order in E.A. No. 943 of 1988 was set aside on the sole ground that

admittedly at the time of passing of the decree Ramaswamy Reddiar was not alive. The order of the court below is not according to law in

impleading his legal representatives subsequently.

In this application decree-holder Krishnasamy Reddiar and the legal representatives of Ramaswamy Reddiar seek review of the order of

learned single Judge dated 17.2.1994. Learned Counsel for the petitioners submits that while a decree passed against a dead person is ab initio

void, a decree passed in favour of a dead person is not a nullity. Such a decree can utmost be an irregularity only. A decree awarded without the

knowledge of the death of the plaintiff can be executed by his legal representatives. Besides, in this case there is another plaintiff Krishnasamy

Reddiar and even in the absence of legal representative of deceased Ramaswamy Reddiar a decree is a valid one. So, the impugned order of

learned Single Judge suffers from an error apparent on the face of the record.

In support of his claim learned Counsel for the review applicants relied on Abdul Azeez Sahib Vs. Dhana-bagiammal and Others, , wherein a

single Judge of this Court has held that it is not open to the executing Court to refuse execution of the decree on the ground that the decree has

been passed in favour of a dead person. As the decree passed in ignorance of the death of the plaintiff is a mere irregularity, it cannot have the

effect of making the decree as one without jurisdiction. Learned Counsel for the respondent has not brought any authority to my notice which has

taken a contrary view. I respectfully agree with the abovesaid view of the learned single Judge and hold that a decree passed in favour of a dead

person is not a nullity and the fact of death, being not brought to the notice of the court when it passed the decree is only an irregularity: and it

cannot have the effect of making the decree void ab initio and the decree is executable. Where the Court proceeded with the case in ignorance of

the fact of death of a person and passed a decree, that decree cannot be treated as a mere nullity. It may, no doubt, be a wrong decree, but it will

have to be setaside by taking appropriate proceedings like appeal, revision or review. Generally speaking a decree passed in favour of a dead

person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would

not make the decree passed in the suit as one without jurisdiction and the executing Court is not entitled to refuse to execute the decree on the

ground that the plaintiff was not alive on the date when the decree was passed in his favour. Order 21, Rule 16 read with Section 146, C.P.C.

enable the legal representatives of deceased decree-holder Ramasamy Reddiar to come on record and apply for execution of the decree and the

decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. So

allowing C.R.P. No. 148 of 1994 on the sole ground that Ramaswamy Reddiar was not alive on the date of decree is an error of law on the face

of the record.

Thiru S. Srinivasan, learned Counsel for the respondent vehemently argued than the scope of an application for review is much more restricted

that that of an appeal. Under Order 47, Rule 1 of the Code of Civil Procedure, the court of review has only a limited jurisdiction circumscribed by

the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, viz., (i) discovery of new and important

matter of evidence which, after the exercise of due diligence, was not within the applicant''s knowledge or could not be produced by him at the

time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. And the

expression ""any other sufficient reason"" means ""a reason sufficient on grounds atleast analogous to those specified in the rule."" In support of his

contention he based reliance on Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, and Raja

Shatrunji Vs. Mohammad Azmat Azim Khan and Others, . The first citation reiterates the principles stated in Order 47, Rule 1, C.P.C. and it is

not of any particular assistance to him. In the next case the Supreme Court found that the law that was applied by the High Court was not the law

which was applicable. Held: The court is to apply the legal provision as it always stood. Failure to do so would be an error on the face of the

record. So this decision also cannot help him.

Whereas it is the claim of learned Counsel for the review petitioners that learned single Judge ought to have interfered in revision by invoking

Section 115, C.P.C. in this case. In Chennichi Alias Parikkal Goundar Vs. D.A. Srinivasan Chettiar, , Ismail, J. (as he then was), has laid down

that the revisional jurisdiction of the court is intended to secure and subserve the ends of justice and not to deny or defeat it. If interference in a

particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional

jurisdiction, even if the impugned order is found to be one without jurisdiction. In Kuba v. Vaithiyanathan, 1988 T.N.L.J. 1, a Division Bench of

this Court has taken the view that the discretionary jurisdiction u/s 115, C.P.C. should not be exercised where order of subordinate court renders

justice to the parties on the facts of the case. In Balambika v. Elizabeth, 1990 T.N.LJ. 116, another single Judge of this Court was not inclined to

exercise his discretion u/s 115 of the CPC in view of hardship or injustice which would be caused to the respondent, if the order of the court

below is set aside. In the present case O.S. No. 22 of 1982 was instituted by deceased Ramaswamy Reddiar and his brother Krishnasamy

Reddiar for recovery of possession and mesne profits. The suit was decreed on 1.12.1986. During execution when the legal representatives of

deceased Ramaswamy Reddiar tried to come on record, it was resisted by the defendant. After enquiry the trial Court ordered impleading of the

said L.Rs. In C.R.P. No. 148 of 1994 by setting aside the impugned order. Injustice has been caused to the decree-holders who are entitled to

recover possession. And in view of the ratio laid down in the three decisions referred to above the discretionary jurisdiction u/s 115 should not

have been exercised since it has caused hardship and injustice to the persons rightly entitled to recover possession of the property. So looked at

from any angle the order dated 17.2.1994 of learned Judge suffers from error apparent on the face of the record.

As early as Murari Rao v. Balavath Dikshit AIR 1924 Mad. 98, a Division Bench of this Court has held that the word ''error'' occurring in

Order 47, Rule 1, C.P.C. need not necessarily be limited to errors of fact, but there are cases in which an error of law can also come within the

meaning of the rule, e.g. where the error of law is such that it is clearly apparent on a perusal of the record. The Bench repelled the contention of

the appellant therein that the word ''error'' must necessarily be limited to errors of fact. The Bench recognised the power of the court in an

appropriate case to review its order because it has overlooked a leading authority on a clear matter of law. Following this decision Wadsworth J.

had held in Natesa Naicker v. Sambanda Chettiar AIR 1941 Mad. 918, that when there is a legal position clearly established by a well known

authority and by some unfortunate oversight the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the

authority, it may in a proper case be a ground coming within the category of an error apparent on the face of the record.

In Valliammal Vs. The Authorized Officer, Land Reforms, Coimbatore, , Ramasami, J. took the view that a mistake or error within the meaning

of the provision in Order 47, Rule 1 of the C.PC. is not confined to mistake or error of facts. Even on a mistake or error of law, if apparent on the

face of the record, the order is liable to be reviewed.

In Sigappiachi and Others Vs. M.A.P.A. Palaniappa Chettiar, , Kailasam and Ganesan, JJ. (Kailasam, J. as he then was), has held that

awarding of interest in a decree at the rate higher than allowed by Section 34 of the Code is an error apparent on the face of record and non-

raising that point in appeal will not make the trial court decree on that point final. Since error is apparent on its face, the same can be corrected, in

review. There could be no doubt that in the impugned order dated 17.2.1994 the view taken by learned Judge that because Ramaswamy Reddiar

was not alive at the time of passing of decree, the decree was a nullity and his legal representatives could not have been impleaded at the execution

state is an error of law apparent on the face of the record and hence it has to be corrected.

In the result, the Review Application is allowed and the order of this Court dated 17 2.1994 is set aside. And C.R.P. No. 148 of 1994 is

dismissed and the order of the executing Court in E.A. No. 943 of 1988 is restored. No costs.