Judgment :- 1. This appeal arises from and order in execution passed by the Additional District Judge of Kottayam in E. P.16 of 1963 in O.S. 168 of 1952. The second additional defendant is the appellant before us. The decree in the case was passed on 3131953 and the suit had been filed on 7-10-1952. The original defendant was one Eipe. The case of the additional defendants who were impleaded in the place of Eipe as his legal representatives was that Eipe was dead even before the date of the institution of the suit. It was alleged that on 151952 Eipe was seen taking a lorry to the plaintiff's estate, and thereafter he was not heard of. It is believed that he died on 27 61952 as a result of an accident. According to the additional defendants, therefore, the decree which was passed exparte on 3131953 is a nullity. 2. The learned judge has held on the strength of the presumption envisaged in S.108 of the Evidence Act that Eipe must be presumed to be dead; but the exact date on which he died has to be gauged from the evidence to be adduced by the parties. He has also held that the burden of proving the exact date of Eipe's death lies on the additional defendants since "it is essential for the establishment of their claim that the decree is void". It is this observation regarding the onus of proof that is challenged before us by the appellant. According to him the burden is on the decree holder to satisfy the court that Eipe was alive on the date of the passing of the decree because it is necessary for him, for the establishment of the right he claims, viz., the right to execute his decree. 3. It was held by the Privy Council in Lal Chand Marwari v. Mahant Ramrup Cir (AIR. 1926 PC. 9) that: "It is constantly assumed that, where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years may be presumed to have taken place at its close. This is not correct. The presumption is the same if the period exceeds seven years. The period is one and continues, though it may be divisible into three or even four periods of seven years. This is not correct. The presumption is the same if the period exceeds seven years. The period is one and continues, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if. instead of speaking of a person who had been heard of for seven years, it described the period of disappearance as one 'of not less than seven years"'. If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter for presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential." The learned judge in applying this principle has evidently gone wrong. According to him, since the additional defendants have admitted that Eipe was last seen alive on 151952 and that he was unheard of only thereafter, the presumption of death can arise only on 151959, i. e., at the end of the seven years' period prescribed by S.108. This is not correct. Eipe might have died at any time after 151952 and since he was alive on 151952 it is for the party who alleges that he was alive on a subsequent date within ? years of 151952, to adduce proof in support of it. "When a person is continually absent for a period of 7 years, unheard of by persons who would naturally have received intelligence from him, he is presumed to be dead and the burden of proving that he is alive is shifted to the person who affirms that he is not dead." (Vide ILR. 8 Bom. 226). 4. The decree holder has no case that Eipe was seen alive at any time after 15 52. For the establishment of his right, viz., the right to execute the decree, it is necessary for him to show that Eipe was alive on the relevant date, i. e., the date on which the decree was passed. The additional defendants, on the other hand, do not seek to establish any right. For the establishment of his right, viz., the right to execute the decree, it is necessary for him to show that Eipe was alive on the relevant date, i. e., the date on which the decree was passed. The additional defendants, on the other hand, do not seek to establish any right. The simple position taken up by them is that Eipe has not been heard of after 15 52 and when that is established, the effect will be that the decree holder will be deprived of a right, viz., the right to execute his decree. It would be incorrect to say that thereby the additional defendants will be establishing a right, S.107 of the Evidence Act states that when a man is shown to be alive within 30 years, the burden of proving that he is dead will be on the person who affirms it, while under S.103 when it is proved that a person is not heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In other words, the presumption in S.107 is that a particular person continues to be alive and he who wants to rebut that presumption must let in evidence to show that the person in question was dead. In the present case, as we have already seen, it is for the decree holder to prove that Eipe was alive on the relevant date. This is exactly the position seen to be taken up in the Orissa decision quoted by the learned judge himself in his order Mukunda Behera v. Subarna Bewa (AIR. 1962 Orissa 3). There, the suit was brought in May, 1956 and it was established that since 1946, defendant Ratnakar was unheard of. When the date of death was necessary to support the plaintiff's claim, the onus of proving it was upon the plaintiff. If Ratnakar died prior to 1148 obviously the plaintiff had no cause of action. Whereas if he died thereafter the plaintiff gets a right under the Hindu Women's Right to Property Act. The burden was not at all discharged by the plaintiff. 5. So also in the present case, Eipe was not heard of since 151952-The suit was filed on 7101952. Whereas if he died thereafter the plaintiff gets a right under the Hindu Women's Right to Property Act. The burden was not at all discharged by the plaintiff. 5. So also in the present case, Eipe was not heard of since 151952-The suit was filed on 7101952. If in fact Eipe's death was between these two dates, i. e. on any date before 7101952 the suit will be one instituted against a dead person; the decree passed in such a suit will be a nullity. The burden, therefore to show that Eipe was alive on the relevant date is on the decree holder. With these observations, we set aside the order and remand the case to the court below for disposal afresh after taking evidence as to the date on which Eipe died. We order no costs in this court. Allowed.