Padmanabhan Nambi v. Raghava Iyer — 1951 DIGILAW 106 (KER)

Judgment :- 1. The 2nd defendant in O.S. No. 957 of 1110 of the Kuzhithura Munsiff's Court is the appellant in this Second Appeal. The appeal is from an order in execution. The decree is for arrears of jenmi dues payable by the family of defendants 1 and 2 for the decree schedule properties. Defendants 1 and 2 belong to a joint Hindu family governed by the Mitakshara law. When the suit was instituted the 1st defendant was the manager of the joint family. The 2nd defendant is the eldest son of the 1st defendant and he was impleaded in the suit as a person in possession of the properties under the 1st defendant. Defendants 2 to 8 were impleaded as persons having some interest in the suit properties. Defendants 3 and 4 alone contested the suit. The 1st defendant died on 30.2.1111. But no one was impleaded in his place and the suit was decreed on 30.6.1111. In execution of the decree the plaintiff filed a petition on 23.12.1119 for impleading the 2nd defendant and his younger brother as the legal representatives of the 1st defendant. Without issuing notice to the persons sought to be impleaded the execution court recorded the 2nd defendant as one of the legal representatives of the 1st defendant and impleaded his brother as additional 9th defendant. When the decree-holder subsequently applied for execution of the decree the 2nd defendant objected on the ground that the decree was a nullity as the legal representatives of the 1st defendant have not been impleaded before the suit was decreed. 2. The trial court held that since the 2nd defendant was the legal representative of the 1st defendant and since he was already on the array of parties the suit had not abated and that the decree was not a nullity. In appeal filed in the District Court the order of the trial court was confirmed. 3. The question to be decided in this second appeal is whether the decree is a nullity by reason of the fact that the legal representatives of the deceased 1st defendant were not impleaded before the suit was decreed. It is not disputed that the 2nd defendant who is the eldest son of the 1st defendant and who became the manager of the joint family on the death of the 1st defendant was the legal representative of the latter. It is not disputed that the 2nd defendant who is the eldest son of the 1st defendant and who became the manager of the joint family on the death of the 1st defendant was the legal representative of the latter. It is stated in the objection petition of the 2nd defendant that on the death of the 1st defendant the suit properties devolved on him. It is therefore clear that on the death of the 1st defendant the right to sue survived against the 2nd defendant. 0.22 R.4 C.P.C. can have no application in such cases. It is only where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, that the court should, on application made in that behalf, cause the legal representative of the deceased defendant to be made a party to the suit, and it is only where within the time limited by law no application is made for the purpose that the suit will abate as against the deceased defendant. Therefore no question of abatement under 0.22 R. 4 arises in this case. It is O.22 R. 2 that applies in such cases. That rule read thus: "Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants." 4. It is admitted by the plaintiff that in this case no entry was made by the court on the record to the effect that the suit survived against the 2nd defendant after the death of the 1st defendant. The question for consideration is what the effect of this omission is so far the decree is concerned. Will the decree in such case be a nullity? 5. Reliance was placed by the learned advocate for the appellant on a ruling of this court reported in 1951 K.L.T. 144 (Ithappiri Mathai v. Sri Devi Antharjanam). That was a suit instituted against a Namboodiri Illom. Will the decree in such case be a nullity? 5. Reliance was placed by the learned advocate for the appellant on a ruling of this court reported in 1951 K.L.T. 144 (Ithappiri Mathai v. Sri Devi Antharjanam). That was a suit instituted against a Namboodiri Illom. The 1st defendant who was the karnavan of the illom died during the pendency of the suit and no one was brought on record as his legal representative. The next senior member of the illom was already on the array of parties but he was not brought on record as the karnavan of the illom and the suit was decreed. Two members of the illom brought a suit to set aside the decree and execution proceedings alleging, among other grounds, that the decree was not validly obtained against the illom. It was held that "as long as the karnavan of the illom was not brought on record as such after the death of the 1st defendant, in the eye of law there was no representation of the illom in the suit and so the decree obtained cannot be valid and binding on the illom. The question whether the decree was a nullity was not considered in that case. What was held in that case was that the decree was not valid so far as the illom was concerned as it was not obtained against the karnavan as such. The validity of the decree was questioned in a fresh suit by persons who were not parties to the decree. In the present case the 2nd defendant who is a party to the decree is contending in execution that the decree is a nullity and that it is not binding on him. We do not think that the decision in 1951 K.L.T. 144 is an authority for this position. 6. The question for consideration in this case is whether the omission on the part of the Court to make an entry on the record to the effect that the legal representative of the deceased defendant was one of the surviving defendants in the case will make the decree subsequently passed a mere nullity. 0.22 R. 2 requires that the court should cause an entry to be made on the record to the effect that the suit survived against the surviving defendant or defendants. 0.22 R. 2 requires that the court should cause an entry to be made on the record to the effect that the suit survived against the surviving defendant or defendants. It is not necessary to implead the person against whom the suit survives as the legal representative of the deceased defendant. It has been held in various cases that when the legal representative of a deceased defendant is already on the array of parties it is not necessary that an application should be filed for substituting him as the legal representative of the deceased defendant. AIR 1930 Mad. 579 (Dawllow Ma v. Ghowdappa); AIR 1936 Pat. 548 (Sankru v. Bhoju); AIR 1933 Lah. 710 (Hirmal v. Sundar Singh); A.I.R. 1940 Bom. 259 (Naranlal v. Shiva Prasad); A.I.R. 1929 All. 347 (Nankoo Ahir v. Bhagelu Ahir); A.I.R. 1933 Nag. 96 (Mt. Laxmi Bai v. Amritlal); AIR 1951 Ajmir 64 (1) (Kanakmal v. Udai Chand) are some of the cases in which the law was laid down as stated above. According to the wording of R.2 of 0.22 it is the duty of the court to make an entry on the record on the death of a defendant that the suit survived against one or more of the surviving defendants. Of course when a defendant dies and the suit survives against one or more of the surviving defendants the court has to be apprised of the fact so that the court may make the entry on the record as enjoined by R.2 of 0.22. Under Art. 609 of the Travancore Civil Courts' Guide "a written intimation made to the court that a party to the suit is dead and that no fresh persons need be impleaded, the party's heirs being already parties to the suit, shall be treated as a petition" and court fee paid accordingly. That rule relates only to the court fee to be paid when a written intimation is made to the court. The Civil Procedure Code does not provide for any application being made in such cases. In some of the cases mentioned above it was held that oral intimation will be sufficient (vide A.I.R. 1930 Mad. 579 and 1936 Pat. 548). That rule relates only to the court fee to be paid when a written intimation is made to the court. The Civil Procedure Code does not provide for any application being made in such cases. In some of the cases mentioned above it was held that oral intimation will be sufficient (vide A.I.R. 1930 Mad. 579 and 1936 Pat. 548). There is nothing in the Code to support the view that the failure to give the intimation and the consequent omission on the part of the court to make the entry as required by R.2 of 0.22 will make the decree a nullity. That may be a ground for setting aside the decree in a appropriate proceedings by the legal representative of the deceased defendant if he is able to make out that he has been prejudiced by the omission on the part of the court to make the entry on the record as required by the rule. But we do not think that a party to the decree who is the legal representative of the deceased defendant can contend in execution that the decree is a nullity. 7. It was brought to our notice that in this case after the suit was decreed the 2nd defendant executed a gift deed in respect of the decree schedule properties in favour of his wife who subsequently mortgaged the same to a stranger and that in the mortgage deed a sum of Fs. 5000 was recited for payment towards this decree debt. The document was presented for registration by the 2nd defendant himself as mukthiyar holder of his wife. The mortgagee paid Rs. 200 on 24.4.1120 and Rs. 150 on 3.5.1120 towards the decree debt. Subsequently the decree schedule properties were sold by the donee to three persons and one of the vendees paid 2706 fanams towards this decree debt. Thus it will be seen that the 2nd defendant has treated the decree as one valid and binding on him. 8. For the above reasons we hold that the decree in this case is not a nullity. We therefore confirm the order of the lower courts and dismiss this second appeal with costs. Dismissed.