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2013 DIGILAW 1740 (MAD)

M. Dhandapani v. P. K. Ramakrishnan

2013-04-22

S.MANIKUMAR

body2013
ORDER Civil Revision Petition is directed against the order and decretal order in E.A.No.25 of 2013 in E.P.No.1 of 2013 in O.S.No.317 of 1996, on the file of the learned District Munsif Court, Udumalpettai, dismissing an application filed by the petitioner, under Section 47 CPC. 2. The moot question in this Civil Revision Petition is whether, a suit instituted against a dead person, is valid in law and whether the decree obtained against him, can be executed. 3. Facts leading to the Civil Revision Petition are as follows: The respondent has filed a suit in O.S. No. 317 of 1996 on the file of the District Munsif Court, Udumalpet, against five defendants. Defendants 2, 3, and 5 viz., Sankaralingam, Mariammal and Muthuvel already dead, have been arrayed as parties to the suit. According to the respondent/ plaintiff, he is the owner of the landed properties, to an extent of 47 cents in Survey No.155 Udumalpet Town, morefully described in the Schedule to the plaint, by virtue of a registered sale deed, dated 02.07.1983, executed in his favour by one Balasubramaniam, According to the plaintiff, he was put in possession by the said Balasubramaniam, about six months, prior to 02.07.1983, by way of an oral agreement. Till 20.06.1987, the decree holder/respondent was in possession and all the defendants, including the dead persons, without any right whatsoever trespassed into the suit properties and dispossessed the respondent/plaintiff inspite of demands and attempts, the defendants refused to deriver possession to the respondent/plaintiff. To the abovesaid circumstances, he has filed the suit to the following reliefs, "(a) directing the defendants to put the plaintiff in possession of the parties. (b) directing the defendants to pay a sum of Rs.15,000/- for past damages for use and occupation. (c) directing the defendants to remove the superstructures before delivery of possession of the properties, by passing a decree for mandatory injunction. (d) determine the future damages and directing the defendants to pay the same from the date of suit till date of delivery of possession to the plaintiff. 4. (c) directing the defendants to remove the superstructures before delivery of possession of the properties, by passing a decree for mandatory injunction. (d) determine the future damages and directing the defendants to pay the same from the date of suit till date of delivery of possession to the plaintiff. 4. The schedule mentioned property in the abovesaid suit, is as follows: ''Within the Tiruppur Registration District, Udumalpet Registration Sub-District, Udumalpet Village in G.S.No.155, the punja land to an extent of 3.23 Acres, for which the tax is Rs.4.49 and bounded on the South by the land, being purchased by Sundararaj on this day; on the North by the lands in G.S. No.136, 156; on the west by the Tiruppur Road, running from South to North; and on the East by the land purchased by Kamalam Kandaswamy and K.V.Shanmugam on this day and comprised within the aforesaid boundaries, the punja land, measuring Acre 0.47 Cents on the Southern side, running from East to West for which the tax is Rs,0.65/-. Thus the land to the said extent and said tax and the titled house, measuring 20 15 constructed in the said land for the agricultural purposes of the aforesaid agricultural purposes of the aforesaid agricultural land with entrance facing the east. The door number to the said house is 25C. In it, about 30 Cents of the land, which is under the possession of the defendants. 5. The suit in O.S.No.317 of 1996, has been decreed on 31st March 2008, by which, a direction has been given to all the defendants therein, including the dead persons, defendants 2,3, and 5, to quit and deliver vacant possession to the respondent/plaintiff, within two months from the date of the decree. Against which, the 1st defendant has filed an appeal in A.S.No.12 of 2010, the file of the learned Subordinate Judge, Udumalpet and that the learned Judge has confirmed the judgment made in the suit. S.A.No.330 of 2011 filed by the 1st defendant has also been dismissed by this Court, vide judgment and decree, dated 01.04.2011. The decree passed by this Court, in the above Second Appeal, runs as follows: "3. That after removal of the super structure to The plaintiff and to that effect, the first defendant shall file An affidavit, within a period of three weeks, if no such Affidavit is filed, the 1st defendant cannot avail the time granted supra; 4. The decree passed by this Court, in the above Second Appeal, runs as follows: "3. That after removal of the super structure to The plaintiff and to that effect, the first defendant shall file An affidavit, within a period of three weeks, if no such Affidavit is filed, the 1st defendant cannot avail the time granted supra; 4. that there is no order as to costs." 6. Alleging that the 1st defendant has disobeyed the directions granted by this Court in S.A.No.330 of 2011, dated 01.04.2011, the respondent/plaintiff has filed a Contempt Petition in C.P.No.1003 of 2012. Material on record further discloses that the respondent/plaintiff has filed E.P.No.67 of 2008 for execution of the decree under Order 21 Rule 11 (2) CPC, against all the defendants. Material on record further discloses that on 20.11.2012, E.P.No.67 of 2008 has not been pressed and that the plaintiff has filed E.P.No.1 of 2013. All the five defendants, including the dead persons, viz. Sankaralingam, Mariammal and Muthuvel, defendants 2, 3 and 5 in the suit in O.S.No.317/96 respectively, have been added as parties in the execution petition. The relief sought for in the Execution Petition No.1 of 2013, as per Column No.8, is as follows: "1. The defendants shall hand over the possession of the suit property to the plaintiff within two months from today. 2. While delivering the possession accordingly, the defendants shall remove the buildings and the superstructures constructed, in the said land. 3. The defendants shall pay Rs. 15,000/- to the plaintiff towards mesne profits." 7. Column No.10 in the Execution Petition, pertains to, persons against whom the decree has to be executed and it reads as follows: "It is prayed that the defendants shall handover the possession of the property to the plaintiff." 8. Material on record further discloses that pending disposal of E.P.No.1 of 2013, on the file of the learned District Munsif, Udumalpet, Mr.P.K.Ramakrishnan, respondent/plaintiff, has filed another suit in O.S.No.246 of 2012, on the file of the learned Subordinate Judge, Udumalpet, against the 1st defendant, D.Narayana Nadar, represented by his power Agent, Mr.P.S. D.Krishnaswamy, Mr.Arumugam and Mr.Dhandapani, the present revision petitioner. Material on record further discloses that pending disposal of E.P.No.1 of 2013, on the file of the learned District Munsif, Udumalpet, Mr.P.K.Ramakrishnan, respondent/plaintiff, has filed another suit in O.S.No.246 of 2012, on the file of the learned Subordinate Judge, Udumalpet, against the 1st defendant, D.Narayana Nadar, represented by his power Agent, Mr.P.S. D.Krishnaswamy, Mr.Arumugam and Mr.Dhandapani, the present revision petitioner. At Paragraph 9 of the plaint in O.S.No.246 of 2012, the respondent/ plaintiff has submitted that the third defendant, i.e. Dhandapanis father, Muthuvel, shown as defendant No.5, in O.S.No.317 of 1996, on the file of the learned District Munsif, Udumalpet, once upon a time, claimed possession of the suit schedule property in O.S.No.317 of 1996, but he was actually not in a possession of the property. Since he was not in possession, the respondent/plaintiff, did not take any steps to implead his legal heirs in the suit. It is also the contention of the respondent/plaintiff that Mr.Dhandapani, revision petitioner, did not take any steps to implead himself, in O.S.No.317 of 1996. 9. Material on record further discloses, Mr.Dhandapani, the revision petitioner, has filed a separate suit in O.S.No.518 of 2012, on the file of the learned District Munsif Court, Udumalpet, for injunction, based on the order passed under Section 145 Cr. P.C. During the court of hearing, the learned Senior Counsel appearing for both parties, submitted that both in O.S.No.246 of 2012 and O.S.No.518 of 2012, the respective Courts have ordered status-quo to be maintained. 10. Material on record discloses that the revision petitioner has filed E.A.No.25 of 2013 in E.P.No.1 of 2013, on the file of the learned District Munsif, Udumalpet, under Section 47 CPC, contending inter alia that his father, Muthuvel, was a tenant in respect of the land, under Mr.Balasubramaniam, from the year 1974 onwards and that he had constructed a building. Material on record further discloses that in the year 1980, water connection has been obtained to the constructed portion, Electricity Service Connection No.1027 has been obtained in the year 1988 and that he was running a tea stall in the name and style of Makkal Tea Stall. He died on 28.6.1989. Therefore, it was the contention of the revision petitioner in the petition, filed under Section 47 CPC.,that the respondent/plaintiff ought to have impleaded him, as the legal heir of Muthuvel in the suit in O.S.No.317 of 1996. 11. He died on 28.6.1989. Therefore, it was the contention of the revision petitioner in the petition, filed under Section 47 CPC.,that the respondent/plaintiff ought to have impleaded him, as the legal heir of Muthuvel in the suit in O.S.No.317 of 1996. 11. According to the revision petitioner, the institution of the suit against a dead person, Muthuvel, is not maintainable and that therefore, the decree obtained by the respondent/plaintiff in O.S.No.317 of 1996, dated 31.3.2008, against a dead person, is not valid, in-executable and not binding on the legal representatives of the deceased Muthuvel. It is his further contention that earlier, on 24.5.1987, the respondent/ plaintiff has forcibly trespassed into the house and shop and damaged the articles. In this regard, a complaint was lodged by Muthuvel, father of the revision petitioner and others to Udumalpet Police Station and later on, it was taken on file in C.C.No.3 of the 1987. Subsequently, the Inspector of Police, Udumalpet, has initiated a case under Section 145 Cr. P.C., and one K.V.K.Natarajan and their men were shown as one party and the revision petitioner and others were shown as the other party After enquiry the Tahsildar Udumalpet has passed an order of status quo on 20.05.1988 According to him, the respondent/plaintiff has not denied the order of status-quo passed by the Tahsildar Udumalpet passed under Section 145 Cr. P.C. in the averments made in O.S. No.246 of 2012 subsequently filed by him. 12. In E.A. No.25 of 2013, the revision petitioner has also submitted that the sale deed, dated 02.07.1983 is not valid. According to him, before and after the status-quo order passed by the Tahsildar his father was in possession of a portion of the suit property. It is also his contention that the Survey Numbers shown in the schedule to the suit property, are not correct. According to him, even prior to the sale deed, 02.07.1983 said to have been executed in favour of the plaintiff, the properties were sub-divided by Udumalpet Municipality and that Muthuvel, his father, was in possession and enjoyment of a portion of the suit properties. 13. According to him, even prior to the sale deed, 02.07.1983 said to have been executed in favour of the plaintiff, the properties were sub-divided by Udumalpet Municipality and that Muthuvel, his father, was in possession and enjoyment of a portion of the suit properties. 13. The revision petitioner has further submitted that the judgment and decree obtained in O.S.No.317 of 1996 on the file of the learned District Munsif, Udumalpet against dead persons, is a nullity and without impleading the legal heirs of the deceased heirs of the deceased defendants, the decree made in O.S. No. 317 of 1996 is inexcutable and not binding on them and hence, prayed for dismissal in E.P.No.1 of 2013 filed for delivery of possession. 14. The decree holder/respondent has filed a counter affidavit to E.A.N0.25 of 2013 stating that the plaint filed in O.S. No 317 of 1996, was property amended after the death of Sankaralingam, Mariammmal and Muthuvel and the word ''died had been added in the amended plaint itself. He has further submitted that since the legal heirs of the deceased, were not in possession and enjoyment of the suit property, they were not impleaded in the suit. He also submitted that after the dismissal of Second Appeal the revision petitioner has tried to enter into the suit property and with help of third parties and rowdy elements, tried to possess the property which constrained him to file another suit in O.S.No.246 of 2012 for a permanent injunction, In the said suit, an Advocate Commissioner has been appointed and that the Commissioner has filed a report, stating that no tea shop in the name and style Makkal Tea Stall was found in the suit property. 15. The respondent decree holder has further submitted that the revision petitioner, a Government employee has filed a false affidavit before the Court and that the proceedings before the Revenue Divisional Officer, were closed, directing the parties to approach the Civil Court. Subsequently the respondent has filed O.S. No. 317, of 1996, against the persons, who were in possession, at the time of filing of the suit and after the death of the revision petitioners father, the property was not in the possession of the revision petitioner and that therefore, he was not added as a party to the suit in O.S. No.317 of 1996. 16. 16. It is the further contention of the respondent/plaintiff that only at the instigation of Narayana Nadar the first defendant in O.S.No.317 of 1996, who has suffered a decree, E.A.No.25 of 2013, petition under Section 47 C.P.C. has been filed. He has also submitted the revision petitioners mother had already filed a suit in O.S.No.162 of 2003 for declaration and injunction and that the said suit was dismissed for default as she was not in possession of the suit property. It is his further contention that the allegation that the sale deed is void, cannot be raised by the revision petitioner. For the abovesaid reasons the decree holder/respondent for dismissal of E.A.No.25 of 2013 filed by the revision petitioner under Section 47 CPC. 17. Before the Execution Court, 10 documents have been filed. Upon considering the pleadings, oral and documentary evidence, the learned District Munsif Udumalpet, by order and decretal order, dated 10th April 2013, has dismissed E.A.No.25 of 2013 and consequently allowed E.P.No. of 2013, with a direction to the revision petitioner to handover possession to the respondent/decree holder. The learned judge has further directed an officer to identify the suit property with the assistance of a Surveyor. Being aggrieved by the order and decree in E.A.No.25 of 2013dated 10.4.2013 on the file of the learned District Munsif, the present revision petition has been filed. 18. Assailing the correctness of the impugned order, Mr. AR.L. Sunderasan, learned Senior Counsel appearing for the revision petitioner submitted that on the date of institution of O.S.No.317 of 1996 on the file of the learned District Munsif Udumalpet, father of the revision petitioner was not alive and therefore, the very institution of the suit against a dead person is a nullity and that the same ought to have been rejected. He further submitted that the decree in O.S.No.317 of 1996 passed against a dead person is also nullity and that the same cannot be executed against a dead person or his legal representatives. In support of the above contention, the learned Senior Counsel relied on the decisions in Ashok Transport v. Awadhesh Kumar reported in 1998 (5) SCC 567 and Deva v. Sajjan Kumar reported in 2001 (3) CTC 52. 19. In support of the above contention, the learned Senior Counsel relied on the decisions in Ashok Transport v. Awadhesh Kumar reported in 1998 (5) SCC 567 and Deva v. Sajjan Kumar reported in 2001 (3) CTC 52. 19. Referring to the plaint averments and the details of the suit properties in the schedule to O.S.No.317 of 1996, filed by the respondent/plaintiff, learned Senior Counsel further submitted that in the plaint, at Paragraph 8, the decree holder/ respondent has submitted that the defendants in O.S.No.317 of 1996, including the dead persons, vis., Sankaralingam, Mariammal and Muthuvel, father of the plaintiff were in possession of about 20 cents of the land, whereas, the schedule to the suit pertains to a larger extent of the land, ie., 30 Cents. He therefore submitted that even the decree holder/plaintiff/respondent, was not aware, as to extent of the land, in possession by each of the defendants. He further submitted that when an application under Section 47 CPC., is filed, wherein all the questions, arising between the parties to the suit or their representatives, relating to the execution, discharge or satisfaction of the decree, can be adjudicated by the executing court and when the executability of the satisfaction of the decree in O.S.No.317 of 1996, was tested, under Section 47 CPC., the Court below, primarily, ought to have considered as to whether the decree passed against a dead person is executable or not. 20. Learned Senior Counsel further submitted that when the respondent/decree holder has made averments against all the defendants, including dead persons that they were in possession of 20 cents of land and that the decree holder/respondent has also paid court fee only for 20 cents, there is a glaring difference in the schedule, in which, recovery of 30 cents of land, has been sought for, from all the defendants, including the father of the revision petitioner. He therefore submitted that the decree holder wants to get recovery of a larger area of land, more than what, was stated to be in possession and enjoyments of all the defendants, including the dead persons. 21. He therefore submitted that the decree holder wants to get recovery of a larger area of land, more than what, was stated to be in possession and enjoyments of all the defendants, including the dead persons. 21. Learned Senior Counsel for the revision petitioner further submitted that the revision petitioners father, Muthuvel, died in the year 1989 and that after his demise, the revision petitioners, mother was in possession and that therefore, the suit in O.S.No.317 of 1996, instituted without impleading the legal heirs of the deceased Muthuvel, is not maintainable. In this context, he pointed out that both in the plaint, as well as in E.P.No.1 of 2013, filed on the file of the learned District Munsif, Udumelapet, recovery has been sought for, against all the defendants including dead persons. 22. Assailing the correctness of the finding of executing Court, that the revision petitioner had not proved possession of the suit properties, as he had not taken any steps to change the name of his father, Muthuvel, in the documents filed by him in the Execution Petition and that therefore, the revision petitioner had no animus possidendi, in respect of the suit schedule property and in such circumstances, the decree holder is entitled for recovery, Mr.ARL.Sundaresan, learned Senior Counsel submitted that the finding is erroneous and not relevant for the purpose of adjudicating the main challenge, as to whether a decree against a dead person could be executed or not. It is the contention of the learned Senior Counsel that the Executing Court has failed to consider that even in the suit in O.S.N.317 of 1996, the decree holder/respondent has not specified the extent of land in possession of each of the defendants and that, in the abovesaid circumstances, the decree ought to have been held as inexecutable. 23. Learned Senior Counsel also submitted that the finding of the Executing Court that the possession claimed by the revision petitioner is invalid, under Section 105, of the Transfer of Property Act, as it prohibits, lease of immovable property for an indefinite period is totally misconceived and irrelevant, insofar as the challenge, as to the executability of the decree, is concerned, against a dead person or his legal heir, who has not been impleaded as a party in the suit or in the Execution Petition. For the abovesaid reasons, he prayed for reversal of the order and decreetal order made in E.A.No.25 of 2013, dated 10.4.2013, on the file of the learned District Munsif, Udumalpet. 24. Objecting to the very maintainability of the Civil Revision Petition, Mr.R.Gandhi, learned Senior Counsel appearing for the respondent/decree holder, submitted that as against the order impugned, an appeal alone would lie and therefore, the revision petition itself, is liable to be rejected. In this context, he relied on a decision of this Court in Arifa Begum v. Noorjahan Begum reported in 2008 (2) CTC 157 . In addition to the abovesaid contention, Mr.Gandhi, learned Senior Counsel further submitted that the suit has been filed, as against all the defendants for recovery of possession and later on, it was found that 5th defendant therein, Muthuvel, was not in possession of the suit schedule property and therefore, an amended plaint has been filed in O.S.No.317 of 1996, on the file of the learned District Munsif, Udumalpet. 25. Learned Senior Counsel further submitted that neither Muthuvel not the revision petitioner was in possession of the suit properties, on the date of the institution of the suit in O.S.No.317of 1996, and that therefore, it is not obligatory on the part of the respondent/plaintiff to implead the legal heirs of the deceased. He further submitted that the institution of the suit in O.S.No.317 of 1996 and the consequential decree, dated 31.3.2008, are valid in law and that therefore, the decree can be executed. 26. It is also the contention of the Learned Senior Counsel that while analysing the oral and documentary evidence, adduced by the revision petitioner, the Court below has categorically found that the revision petitioner was not in possession and enjoyment of the disputed property and that therefore, he has no locus standi to prefer a petition under Section 47 CPC. According to him, the revision petitioner is only a third party obstructor and hence, the adjudication and the consequential order passed in E.A.No.25 of 2013, should be construed to be an order passed only under 21 Rule 98 CPC and in such circumstances, the present revision petition is not maintainable in law and that the Registry ought to have rejected the revision petition as not maintainable. 27. 27. Learned Senior Counsel further submitted that being aggrieved by judgment and decree in O.S.No.317 of 1996, the 1st defendant therein, Narayana Nadar has filed an First Appeal in A.S.No.12 of 2012 and that the said appeal has been dismissed by the learned Subordinate Judge, Udumalpet. He also submitted that the judgment in A.S.No.12 of 2012, has been confirmed in S.A.No.330 of 2011 by this Court and in the abovesaid circumstances, it is not open to the revision petitioner to assail the correctness of the sale deed, dated 02.07.1983. He further stated that the revision petitioner cannot once again re-agitate the correctness of the sale deed executed in favour of the decree holder/respondent. 28. Learned Senior Counsel further submitted that after the decree, in O.S.No.317 of 1996, the revision petitioners mother claiming herself to be in possession of the suit schedule properties, filed a suit in O.S.No.162 of 2003 and thereafter, the said suit has been dismissed for default and that no steps have been taken by her for restoration. 29. It is his further contention that when the revision petitioner or his father, was not in possession of the suit schedule property, he has no right to obstruct the execution of the decree passed in O.S. No. 317 of 1996, as inexecutable. He further submitted that the petition under Section47 CPC., has been filed only at the instigation of Narayanasamy Nadar, 1st defendant in O.S.No.317 of 1996, against whom, a contempt application, has been filed before this Court. For the abovesaid reasons, he prayed to sustain the impugned order and consequently, to dismiss the Civil Revision Petition. 30. Heard the Learned Counsel for the parties and perused the materials available on record. 31. Admittedly, the revision petitioners father, died in the year 1989. The suit in O.S.No.317 of 1996, has been filed against five defendants. In the plaint, defendants 2,3 and 5 have been shown as dead. It is the case of the decree holder/respondent that he had purchased land and properties in S.No.155, by virtue of a sale deed, dated 02.07.1983, executed in his favour by one Balasubramaniam, According to him, he was put in possession of the property, even six months prior to the sale deed. It is the case of the decree holder/respondent that he had purchased land and properties in S.No.155, by virtue of a sale deed, dated 02.07.1983, executed in his favour by one Balasubramaniam, According to him, he was put in possession of the property, even six months prior to the sale deed. It is also his contention that till 20.06.1987, he was in possession and enjoyment of the property and thereafter, all the defendants including the dead persons, trespassed into the property and dispossessed him. At this juncture, it is relevant to extract paragraphs 5 to 8, of the plaint in O.S.No.317 of 1996. "5. The plaintiff was in possession and enjoyment of the above property till 20.06.1987, when the defendants without any right whatsoever trespassed into the properties and dispossessed the plaintiff. The defendants refused to deliver possession to the plaintiff. Inspite of various demand and attempts made in that behalf. 6. As the defendants are in unlawful possession from 20.6.1987, they are not only liable to deliver possession of the properties to the plaintiff but also liable to pay damages for the unlawful use and occupation of the properties till they deliver possession. 7. The suit is filed for a decree of delivery of possession by the defendants to the plaintiff and also for past damages at the rate of Rs. 5,000/- per annum and also for future damages for the use and occupation at the rate to be decided by this Honble Court. The properties are capable of yielding an annual income of not less than Rs. 5,000/-. 8. The defendants have unauthorisedly put up some constructions on the above land. The defendants are in occupation of about 20 cents of lands. They are bound to remove them before deliver of possession of the lands to the plaintiff. The suit is also laid for the relief of Mandatory injunction directing them to remove the said constructions, before delivering vacant possession of the lands. 9. The plaintiff filed a suit against the third defendant and other person for the relief of injunction in O.S.No.235 of 1987, District Munsif of Udumalpet, as at that time, the plaintiff was in possession. As the defendants have dispossessed the plaintiff on 20.06.1987, the plaintiff had to withdraw the above suit. 9. The plaintiff filed a suit against the third defendant and other person for the relief of injunction in O.S.No.235 of 1987, District Munsif of Udumalpet, as at that time, the plaintiff was in possession. As the defendants have dispossessed the plaintiff on 20.06.1987, the plaintiff had to withdraw the above suit. The plaintiff filed an application in I.A.No.755 of 1987, for withdrawing the suit with liberty to file another suit for possession on the same cause of action. The petition was allowed and permission was granted. The certified copy of the said order will be produced at the time of trial. This suit is filed accordingly." (emphasis supplied) 32. Again, at Paragraph 10, while furnishing the details, as to the cause of action, for instituting the suit in O.S.No.317 of 1996, the respondent/decree holder, has stated that the cause of action for the suit arose on 20.06.1987, on which date, the defendants therein trespassed and dispossessed him, from the plaint schedule properties and put up unauthorized constructions and that they were in continuous possession of the property. As stated supra, in O.S.No.317 of 1996, the decree holder has prayed for a direction, against all the defendants and consequently, to put the plaintiff in possession and for further reliefs. 33. The learned District Munsif, Udumalpet, has granted a judgment and decree on 31st March 2008, as follows: "1. The defendants shall hand over the possession of the suit property to the plaintiff within two months from today. 2. While delivering the possession accordingly, the defendants shall remove the buildings and the superstructures constructed, in the said land. 3. The defendants shall pay Rs.15,000/- to the plaintiff towards mesne profits. 4. The plaintiff shall initiate special action against the defendants towards the future loss. 5. The defendants shall pay Rs.6537.70 to the plaintiff towards the costs of the suit." 34. The institution of the suit itself is against three dead persons, viz. Sankaralingam, Mariammal and Muthuvel, defendants 2, 3 and 5 therein and that a decree has also been granted against them. After the disposal of the Second Appeal No.330 of 2011, filed by the 1st defendant, Narayana Nadar, the respondent/plaintiff has E.P.No.67 of 2008, and that the same was posted on 20.11.2012. Sankaralingam, Mariammal and Muthuvel, defendants 2, 3 and 5 therein and that a decree has also been granted against them. After the disposal of the Second Appeal No.330 of 2011, filed by the 1st defendant, Narayana Nadar, the respondent/plaintiff has E.P.No.67 of 2008, and that the same was posted on 20.11.2012. Thereafter, E.P.No.67 of 2011, has been withdrawn, as not pressed and subsequently the decree holder/respondent has filed another E.P.No.1 of 2013, in which, all the defendants, including the dead persons, have been shown as parties, in the Execution Petition. The decree holder/respondent has sought for a direction to recover possession from all the defendants, including the dead persons. 35. Though the decree holder/respondent has contended that after the institution of the suit in O.S.No.317 of 1996, it was found that 5th defendant, deceased Muthuvel, was not in possession and enjoyment of the suit schedule properties and vide order in I.A.No.419 of 2007 dated 27.2.2007, an amended plaint has also been filed, the averments contained in the amended plaint, enclosed at Page 1 to 7 in the typed set of papers, do not substantiate the abovesaid contention of the decree holder/respondent that after verification, it was found that neither the 5th defendant nor his legal heirs were in possession of the property. At this juncture, it should be noted that as per the plaint averments in O.S.No.317 of 1996, all the defendants were alleged to have trespassed into the suit property and from 20.06.1987 onwards, they were in possession and put up constructions. However, the suit has been decreed against dead persons also. The amended plaint does not contain any details, as to when the decree holder/respondent came to know that the deceased Muthuvel or his legal heirs were not in possession. If the deceased defendants 2,3, and 5, were not in possession and enjoyment of the properties, there is no reason, as to why, they were shown as parties in the amended plaint. Admittedly, none of the legal representatives of the deceased defendants have been impleaded in the suit or in the execution petition. Again, the dead persons have been shown as parties in the execution petition along with others, viz. Narayana Nadar, the 1st defendant and the 4th defendant in the suit. Admittedly, none of the legal representatives of the deceased defendants have been impleaded in the suit or in the execution petition. Again, the dead persons have been shown as parties in the execution petition along with others, viz. Narayana Nadar, the 1st defendant and the 4th defendant in the suit. There is no specific averement in the plaint in O.S.No.317 of 1996, as to whether the legal heirs of the defendants were in possession of the property or not. 36. When the Suit in O.S.No.317 of 1996, has been instituted against dead persons, alleged to have trespassed and dispossessed by the decree holder/respondent and when the decree holder has obtained decree against dead persons, it has to be seen as to whether, such a decree could be executed against dead persons, in the absence of impleading the legal representatives, as parties. As rightly pointed out by Mr.ARL.Sundaresan, learned Senior Counsel for the revision petitioner, the averments made in the amended plaint in O.S.No.317 of 1996, do not disclose the extent of the land in possession and enjoyment by each one of the defendants. Perusal of the plaint averments also makes it clear that even on the date of institution of the suit in O.S.No.317 of 1996, the decree holder/respondent himself was not aware , as to what exactly was the extent of land, in possession and enjoyment by each one of the defendants and bald averments have been made in the plaint. The above aspect has also been fairly accepted by Mr.Gandhi, learned Senior Counsel for the decree holder/respondent, during the course of arguments, that only after the institution of the suit in O.S.No.317 of 1996, the respondent/plaintiff came to know that Mr.Muthuvel, the 5th defendant in the abovesaid suit, was not in possession and enjoyment of a portion of the suit schedule property. Certainly, a dead person cannot be said to be in physical possession of the property. 37. Certainly, a dead person cannot be said to be in physical possession of the property. 37. Though the revision petitioner has contended that his father, Muthuvel, 5th defendant was in possession and enjoyment of a portion of the suit schedule property and was running a tea stall in the name and style of Makkal Tea Stall, it is the report of the learned Advocate Commissioner in the suit, in O.S.No.246 of 2012, filed by the decree holder/respondent, for a permanent injunction against Narayana Nadar and Arumugam, defendants 1 and 2 therein, that there was no such tea shop in the said place. 38. The documents filed in the Execution Court show that the deceased Muthuvel, father of the revision petitioner, had paid tax to the Municipality, for obtaining a licence. Ex.P5 (series), Tax Receipts have been registered in the name of Muthuvel, upto 11.6.1987, Upon perusal of Ex.P5, the Court below has found that after the demise of the 5th defendant, Muthuvel, the licence has not been extended. Likewise, upon perusal of Ex.P6 (series), Electricity Bills, the Court below has also found that all the documents only stood in the name of the deceased, Muthuvel, Ex.P7 (series), Water Charges, also stood in the name of the deceased Muthuvel. 39. Having regard to the oral testimony of the revision petitioner that steps have not been taken for mutation or records in his name in the abovesaid records, the Court below has arrived at a conclusion that if the revision petitioner had the intention to be in possession and enjoyment of the disputed property. 40. In the abovesaid circumstances, the Court below has rejected the contention of the revision petitioner that he is in possession of the disputed property. However, reading of the impugned order shows that as per the commissioners report and sketch, in the subsequent suit in O.S;No.246 of 2012, instituted by the decree holder/respondent, the Commissioner has clearly stated that there were dilapidated buildings in the suit schedule properties. However, reading of the impugned order shows that as per the commissioners report and sketch, in the subsequent suit in O.S;No.246 of 2012, instituted by the decree holder/respondent, the Commissioner has clearly stated that there were dilapidated buildings in the suit schedule properties. When the existence of rooms and buildings, during inspection of the learned Advocate Commissioner was very much noticed and to substantiate the same, Ex.P8, Report along with P9 Sketch have been filed, the Court below ought to have considered, as to whether the revision petitioner has made out a case, regarding legal possession of the building, said to have been put up his father, the deceased Muthuvel, 5th defendant in the suit in O.S.No.317 of 1996. 41. In the above factual background, this Court deems it fit to consider, as to whether, the intention of the revision petitioner to possess and enjoy the said the building or the portion of the suit schedule property is required to be decided in an application filed under Section 47 of the Code of Civil Procedure. 42. Right to possess or to have legal possession from the works of Pollock and Wright in an essay on possession in the Common Law (1888 Edn. P.27) is reproduced hereunder: "Right to possess or to have legal possession. This includes the right to physical possession. It can exist apart from both physical and legal possession. It is for example that which remains to a rightful possessor immediately after he has been wrongfully dispossessed. It is normal incident of ownership or property, and the name of property is often given to it.. Right possess, when separated from possession, is often called constructive possession. The correct use of the term would seem to be coextensive with and limited to those cases where a person entitled to possess is (or was) allowed the same remedies as if he had really been in possession." 43. Merely because the revision petitioner has not effected mutuation of records, in his name, to run the tea stall, by renewing the licence or in the matter of payment of electricity and water charges, for such tea stall, it cannot be contended that the revision petitioner has no case, to plead and sustain possession. Admittedly, the learned Advocate commissioner has noticed construction of rooms and buildings and that they were a dilapidated condition. Admittedly, the learned Advocate commissioner has noticed construction of rooms and buildings and that they were a dilapidated condition. As per the plaint averments in O.S.No.317 of 1996, all the defendants including defendants 2, 3, and 5 (dead persons) had trespassed into the suit properties and put up constructions. When trespass and construction have been admitted by the respondent/plaintiff and it is also admitted by the learned Senior Counsel for decree holder/respondent that at the time of institution of the plaint, the decree holder/respondent himself was not aware, as to what exactly, was the extent of land possessed by each one of the defendants therein the subsequent report of the learned Advocate Commissioner and sketch filed in O.S. No.246 of 2012, fortifies the contention of the revision petitioner that his father, Muthuvel had put up a construction obtained a licence for running a tea stall and the documents. Exs P5 and P6 (series) also show that electricity and water connections have been obtained to the constructed portion. Thus, constructive possession in respect of a portion of suit schedule properties and the right to possess have been substantiated. Animus possidendi to have physical possession is no ground to reject the case of the revision petitioner, when he has claimed right over the portion of the property through his father. Possession means legal right to possess and it cannot be confined to actual possession. 44. From Exs P5 and P6 (Series) it could be deduced that the deceased, Muthuvel father of the revision petitioner was in possession and enjoyment of a portion of the suit schedule property, as on 20.07.1989 when the cause of action arose for the suit in O.S.N0.317 of 1996, seeking for a delivery of possession and that therefore, the contention that the said respondent/plaintiff that the revision petitioner was not in physical possession of a portion of the property and that therefore, there is no necessity to implead the legal representative of the deceased Muthuvel and that therefore, the suit instituted in the year 1996, against the dead persons, was proper and valid in law, cannot be countenanced. 45. As rightly contended by the learned Senior Counsel for the revision petitioner that the finding of the Court below that the possession of the revision petitioner cannot be for an indefinite period, as per Section 105 of the Transfer of Property Act, in my humble view. 45. As rightly contended by the learned Senior Counsel for the revision petitioner that the finding of the Court below that the possession of the revision petitioner cannot be for an indefinite period, as per Section 105 of the Transfer of Property Act, in my humble view. May not be relevant for the purpose of adjudicating as to whether a decree, against a dead person can be executed or not. Though Mr.R.Gandhi learned Senior Counsel objected to the maintainability of the revision petition, on the grounds that the impugned order has to be construed, to have been passed under Order 21 Rule 98 CPC, and further contented that the revision petitioner is only a third party, set up by Narayana Nadar, 1st defendant, against whom a Contempt Application has been filed, perusal of the impugned order makes it abundantly clear that after considering the provision under Section 47 and the challenge made, as to the executability of the decree, by the decree holder/respondent the Court below has categorically held that the petition filed under Section 47 CPC, is maintainable. The decree holder/respondent has not challenged the finding, on the maintainability of the petition E.A.No.27 of 2013. In the absence of any challenge to the said finding, it is not open to the decree holder/respondent to urge the same in the revision petition, filed by the son Muthuvel, who has claimed possession. That apart, the contention of the learned Senior Counsel for the decree holder/respondent that the revision petitioner has been set up by Narayana Nadar, also cannot be accepted, for the reason that the revision petitioner has filed an application under Section 47 CPC, independently challenging the executability of decree of O.S.No.317 of 1996, passed against a dead person, Muthuvel. Further as rightly contended by the Learned Senior Counsel for the revision petitioner, when the extent of land alleged to have trespassed and dispossessed, was in respect of 20 cents of land, as per the Schedule to the E.P. No 1 of 2013 recovery sought for is to an extent of 30 Cents. The schedule to the plaint and the recovery sought for cannot overreach the extent of land alleged to have been dispossessed, by the defendants. 46. The schedule to the plaint and the recovery sought for cannot overreach the extent of land alleged to have been dispossessed, by the defendants. 46. In Roop Chand v.Sardar Khan and others reported in AIR 1928 Lahore 399, a Division Bench of the Lahore High Court held that in case the suit had been brought against one defendant only, who had admittedly died before the institution of the suit there was really no suit property instituted and that there was nothing in the Civil Procedure Code to authorize a Court to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased, even though the suit had been instituted bona fide and in ignorance of the death of the defendant. The position however, is quite different where the deceased person is not the sole defendant but is one out of large number of defendants. 47. In Municipal Council Calicut v.Thazhel Puthan Puravil Kunhi Pathumma and another reported in AIR 1933 Mad. 454 it was held that where the plaint is filed against a person, who is in fact dead, no application by way of amendment or bringing on record legal representatives can be validly made because the whole proceedings is void and has no effect whatsoever. 48. In Sisir Kumar Tarafdar v. Manindra Kumar Biswas reported in AIR 1958 Cal.681, it was held as under:- ''It must therefore be held that the power given to the court under sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure to add a party contemplates only those cases where there is somebody else as plaintiff or defendant and the effect of bringing on record another person as plaintiff or defendant would be really a case of addition of plaintiff or defendant. A case of mere substitution as distinct from addition is not contemplated in sub-rule (2)." 49. A case of mere substitution as distinct from addition is not contemplated in sub-rule (2)." 49. In Hiralal Patni v. Sri Kali Nath reported in AIR 1962 SC 199 , the Supreme Court observed as follows; "The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rending the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. But in the instant case, there was no such inherent lack of jurisdiction." 50. In C.Muttu v. Bharath Match Works reported in AIR 1964 Mys 293, the short point, which arose for consideration was, whether the suit filed by the petitioner therein on 31-7-1958 against one X, who had died on 1.6.1958 was a nullity and whether the order permitting the petitioner to substitute the respondent in place of the original defendant was without jurisdiction. In the reported case, it has been urged by the learned counsel for the petitioner, that the petitioners application filed under Order XXII RULE 4 and section 151 of C.P.C. for permission to amend the plaint by deleting the name ofX and substituting the name of the respondent in his place, was clearly maintainable though the original defendant was dead, at the time the suit against him was instituted. 51. After considering a number of decisions, the High Court held that there is no room for doubt that the application of the type presented by the petitioner for deleting the name of 'X who was not alive, on the date, the suit was instituted and for substitution of the name of the respondent in his place, is not maintainable. Some of the decisions relied on by the Court and the observations are reproduced hereunder: "5. In Savitramma v.Nanjundappa 25 Mys. Some of the decisions relied on by the Court and the observations are reproduced hereunder: "5. In Savitramma v.Nanjundappa 25 Mys. L.J.113, a Division Bench of the former High Court of Mysore considered the very question raised in this revision petition Venkataranga Iyengar J. who delivered the judgment in the case, reviewed the case law on the point and held that when a suit is brought against a person as a sole defendant and that person is found to have died before its institution the suit is a nullity from its inception and the court has no jurisdiction to substitute as defendant the legal representative of the deceased and allow the suit to proceed against him either under Section 153 or under Order 1, Rule 10 (2) of the C.P.C. The facts of that case were exactly similar to the facts in the case before us. The plaintiff in the said suit had filed a suit against one Naranappa on the 5th of March 1945. It was subsequently found that Nranappa had died on 28th November 1944, that is, prior to the institution, of the suit. The application under Order XXII Rule 4 of the C. P.C.to bring on record Savitramma, the daughter of Naranappa as his legal representative was made by the plaintiff. When Savitramma was served with the notice, she contended that her father had died on 28th November 1944, i.e. prior to the institution of the suit and the suit filed against a dead person was a nullity and was liable to be dismissed. The trial court rejected this contention and allowed the plaintiff to amend the plaint by substituting the name of Savitramma in place of Naranappa as defendant in the suit. Being aggrieved by this order, Savitramma filed the revision petition before the former High Court of Mysore. The revision petition was allowed and the order passed by the trial court was set aside. As already stated the court held that the suit filed against Naranappa who was dead prior to the presentation of the plaint, was a nullity and the court had no jurisdiction to allow the amendment prayed for. 6. The revision petition was allowed and the order passed by the trial court was set aside. As already stated the court held that the suit filed against Naranappa who was dead prior to the presentation of the plaint, was a nullity and the court had no jurisdiction to allow the amendment prayed for. 6. In Mohun Chunder Koondoo v.Azeem Gazee Chowkeeder, 12 Suth W.R.45 3 Beng LR AC 233 Sir Barnes Peacock C.J. who delivered the judgment of the Bench held that courts have no jurisdiction to decide the suit filed against a dead person and it is a nullity. This decision was followed by the Madras High Court in Veerappa. Chetty v. Tindal Ponnen, ILR 31 Mad 86 and observed in the Madras case as follows: It does not appear to have ever been suggested that the issue of a writ against a dead man could be anything but a nullity, and we see no reason for regarding the presentation of a plaint, which under our system corresponds to the issue of the writ, as anything more. This decision was followed by Sadasiva Aiyar and Napiet JJ. In re:Arunachalam Chettiar 30 Ind Cas 679 : AIR 1916 Mad 440)and by Srinivasa Aiyangar J. in Rasa Goundan v. Pichamuthu Pillai 42 Ind Cas 539 (AIR 1918 Mad 794 (i) The High Court of Bombay took the same view in Rampratab Brijmobandas v. Gowrishankar Kashiram 85 Ind Cas 464 : (AIR 1924 Bom 109). In that case Mulla J.observed thus: If he (defendant) dies before the suit a suit is brought against him in the name in which he carried on business the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons, issued in the suit by whomsoever accepted is also a nullity. Similarly, any order made in the suit allowing amendment of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person. Similarly, any order made in the suit allowing amendment of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person. In Bejoy Chand Mahatap Bahadur v. Amutya Charan Mitra 24 Ind Cas 112: (AIR 1914 Cal 895) a Division Bench of the Calcutta High Court held that the provisions as to the substitution of the heirs of a deceased defendant as parties to the suit in his place apply only to cases where the original defendant was alive at the date of the institution of the suit. 7. In Municipal Corporation of Karachi v. Baradiojumoo Mughal, AIR 1946 Sind 20 Thadani after reviewing the decisions of the several High Courts dealing with this question, held that where a suit is filed against dead person, a court has no jurisdiction to grant an application under Order 1 Rule 10,. Or under Order 22, Rules 4 and 9 or do any other act authorized by the Civil Procedure Code, as the suit filed against a dead person, is a nullity. His Lordship further held that bona fides or mala fides of the plaintiff are immaterial." 52. In Prestige FinP Ltd., v. Balwant Singh reported in 1978 (48) Comp. Cas. 459 (Delhi) the Delhi High Court considered an application under Order 22, Rule 4, read with Section 151 of the Code of Civil Procedure moved in the course of a proceeding under the Companies Act, 1956, instituted under Section 446 and other Sections, against Shri Balwant Singh and others, The facts of the case were that one Shri Krishan Lal, one of the respondents named in the petition under Section 446, was found to be dead, when the summons issued by this court was sought to be served on him. On this, the official liquidator moved an application for impleading his legal representatives submitted that the petition is not maintainable because it was filed against a dead person and shri Krishan Lal had died on 19th March, 1968, before the main application was moved. On this, the official liquidator moved an application for impleading his legal representatives submitted that the petition is not maintainable because it was filed against a dead person and shri Krishan Lal had died on 19th March, 1968, before the main application was moved. To clarify the said point, the Delhi High Court considered a decision reported in Roop Chand v. Sardar Khan AIR 1928 Lah 359 wherein a Divison Bench observed as follows ''If a suit is filed against a dead person, then it is nullity and you cannot join any legal representatives; you cannot even join any other party, because it is just as if no suit had been filed. On the other hand, if a suit has been filed against a number of persons, one of whom happens to be dead when the proceedings were instituted then the proceedings are not null and void, but the court has to strike out the name of the party who has been wrongly joined. Such a person would be deemed to be wrongly joined, because he was dead on the date of the institution of the suit and therefore, incapable of being joined. Following the abovesaid decision and considering the provisions of the Code of Civil Procedure, to implead the legal representatives of the deceased, the Delhi High Court held as follows: "4. The next question is whether a party can be joined under Order1, Rule 10 or under Order 6, Rule 17 of the code Obviously, if the case has been instituted against a dead person and that person happens to be the only person, then the proceedings are nullity and even Order 1, Rule 10 or Order 6, Rule 17 cannot be availed of to bring about an amendment. This is the law stated in Municipal Council v. Thazhel Puthan Purayil Kunhipathuma, which is a case dealing with the death of a sole defendant. Similarly if one of the defendants is found to be dead, then the situation is dealt with in firm pala Mal-Narain Mal v. Fauja Singh AIR 1926 Lah 153 wherein it was held that the name of that defendant is to be struck out and the case to be proceeded with. But, suppose the person who has died is a necessary party, then his legal representatives have to be impleaded somehow or other. But, suppose the person who has died is a necessary party, then his legal representatives have to be impleaded somehow or other. That situation is discussed in Roop Chand v. Sardar Khan, AIR 1928 Lah 359, wherein it is held that either an amendment of the plaint has to be made or the suit has to be dismissed. A case dealing with the joining of a partyunder Order a, rule 10 where one of the defendants was already dead, is Sringeri Mutt Sri Jagathguru Chandra Sekhara Bharathi Swamigal v. Komarasami Goundan AIR 1917 Mad 849. This judgment in fact shows that even though an application under Order 22, Rule 4 was rejected, another application can be moved under Order 1, Rule 10, to join the transferees or legal representatives in their personal capacity. To clarify, the legal representatives in this case have to be joined not as legal representatives, but in their own right, whether or not they have succeeded to the claim mentioned in the main case will have to be decided on the merits. The present application cannot be allowed, but orders will be passed under Order 1, Rule 10 of the Code in the main case. This application is accordingly dismissed. Parties to bear their own costs." 53. In Ali Mohd. Khan v. Vijay Tulsi reported in AIR 1986J &K 26, the only question, which arose for consideration, was whether a suit is filed against a dead person, can the plaintiff be allowed, subsequently to amend the plaint and substitute the legal representatives in place of the deceased defendant? After considering the decisions in C.Muttu's case (cited supra) and Hira Lal's case (cited supra), the Court held as follows: "5. In view of the aforesaid pronouncement of the Supreme Court, the question referred to in the earlier part of this judgment must be answered in the negative and it must be held that where a suit is filed against a dead person it is a nullity and plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the defendant. It appears that the observations of the Supreme Court were not brought to the notice of the learned single Judge when the case was referred to the Division Bench. 6. In view of what has been said above, this revision petition must succeed and it is hereby allowed. It appears that the observations of the Supreme Court were not brought to the notice of the learned single Judge when the case was referred to the Division Bench. 6. In view of what has been said above, this revision petition must succeed and it is hereby allowed. The order of the learned Sub Judge, City Magistrate, Srinagar, dated 21st November, 1977 allowing the substitution of the defendant who had died before the filing of the suit against him by his legal representatives, being an order without jurisdiction is hereby quashed." 54. In Pratap Chand v. Krishna Devi reported in AIR 1988 Del. 267 , the Delhi High Court held that, "(24) I have considered the relevant contentions of the parties. The contention of the learned counsel for Mr.Vishawa Nath Mehta has force and it should prevail. Suit cannot be filed against a dead person. In view of the pronouncement of the Supreme Court in Hira Lal's case (supra) and in view of the various other High Courts relied upon by the learned counsel for Mr. Vishwa Nath Mehta I am of the considered opinion that the suit against a dead person is a nullity and the plaintiff cannot be allowed subsequently to, amend the suit and substitute the legal representatives in place of the defendant. I fully agree with the reasoning given in these judgments. (25) I hold that the suit filed against the sole defendant, Ms Krishna Devi Mehta is a nullity and the plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the defendant. The application of the plaintiff under Order 22 Rule 4 Civil Procedutre Code (Being IA.671187) fails and is dismissed. The application of Mr.Vishwa Nath Metha under Order 7 Rule 11 & under Order 22 Civil Procedute Code (being I.A. 319111987) is allowed." 55. In Mohamed Ibrahim v. Chellammal reported in AIR 1991 Mad. 309 = 1991-1-L.W. 256, this Court held as follows: "No doubt the contention of learned Counsel for the petitioner is correct in law, as the appeal filed by the respondent herein before the Subordinate Judge was a stillborn one as the defendant in the suit was dead by the time the appeal was filed. In such cases, Order XXII, C.P.C. will not apply. There is no question of bringing on record their legal representatives as there was no valid appeal. In such cases, Order XXII, C.P.C. will not apply. There is no question of bringing on record their legal representatives as there was no valid appeal. The remedy of the appellant is to get the cause title amended, if it is within time to file the appeal against the legal representatives. Ifit is out of time, the remedy is to apply for condonation or delay in filing the appeal against the legal representatives." 56. In Nachimuthu Gounder (died) Bakkiam & two others v. Manikavalli reported in 1996 (1) CTC 532 , a learned Single Judge of this Court, considered a case, as to whether, an appeal filed against a dead person, is nullity or not. In the reported case, the appeal was instituted, as if he was alive. Nevertheless, this Court, after considering a catena of judgments, held that the appeal itself is a nullity. Adverting to the controversy, this Court, at Paragraphs 10 and 11, held as follows: "10. Per contra, the counsel for the respondents contended that the appellant Nachimuthu Gounder died on 4.9.91; whereas the appeal has been filed on 13.9.91, as if the appellant was alive, An appeal filed in the name of the person, who was dead on the date of the institution, is a nullity and cannot be permitted to continue the proceedings by the legal representatives. Further the vakalat executed in favour of the counsel automatically seized to operate immediately on the death of the person who executed the vakalat. Hence on 13.9.91 the counsel has no authority to present the appeal, since the said Nachimuthu Gounder died on 4.9.91. He relied upon the case reported in Bai Pani v. Madhabhai ( AIR 1953 Bom 356 ), in which the Division Bench of Bombay High Court has held as follows: Now, apart from authorities, I should have said that the appeal that was preferred on 29.1.1951, was clearly a nullity. The appellant being dead, the pleader who preferred the appeal had no authority to prefer any appeal and the vakalatnama signed in his favour had come to an end. If the appeal was a nullity, no order could be made in that appeal which would be an effective order, and therefore the learned District Judge was right in refusing to direct that the petitioner should be substituted in place of the deceased appellant. If the appeal was a nullity, no order could be made in that appeal which would be an effective order, and therefore the learned District Judge was right in refusing to direct that the petitioner should be substituted in place of the deceased appellant. An effective order under Order 1, Rule 10, can only be made provided there is a suit or an appeal before the Court, but if the suit or the appeal is nullity, then any order made in that suit or appeal is equally a nullity, and the learned Judge rightly relied on the decision of Mr.Justice Mulla in-Rampratap v. Gourishankar AIR 1924 Bom. 109(A). In that case the learned Judge was dealing with a suit filed by the plaintiff against the firm of the defendants father. The defendants father was the sole owner of the firm and he had died before the institution of the suit and Mr.Justice Mulla held that the suit instituted was not merely against a wrong person but against no person at all and he points out at page 111 that any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. In the case reported in Mohideen v. V.O.A. Mohomed, AIR 1955 Mad. 294 = (1955) 68 L.W.181, a Division Bench of the Madras High Court has held as follows: In our opinion the questions set out correctly express the law in India also. If however imperfectly and incorrectly a party is designated in a plaint the correction of the effort is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of the intention of the party and if the court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided that mistake was bonafide Order 1, Rule 10, C.P.C. Such an amendment does not involve the addition of a party so as to attract Section 22 (1) Limitation Act. Suits by or on behalf of dead persons stand in a different category. Suits by or on behalf of dead persons stand in a different category. The principle that a misdescription could be corrected by amendment could not obviously be applied to such a case but this is far from saying that merely because the law does not recognise the firm as being a legal entity, the firm name could not indicate or designate the individuals comprising the firm. The case reported in Amar Kaur v.Sadhu Singh (AIR 1961 Punjab 57 (DB) is also a case where the appeal has been preferred in the name of a dead person. Similar arguments were advanced. The Division Bench has held as follows: Shri Harbans Singh Gujral, the learned counsel for the appellants, in assailing the order of the learned single judge has not disputed the fact that the execution appeal was filed in the name of a dead person as Ram Lal, appellant, had died a few days earlier on 27.10.1956. He has however, urged that since an appellate court has all the powers of the original court, as laid down in Section 107, C.P.C. the learned Judge acting under Order 1, Rule 10, C.P.C., should have allowed the names of Shrimati Amar Kaur and Sohan Singh to be substituted for the deceased appellant Ram Lal, being his legal representatives, as it was on account of sheer ignorance of the death of Ram Lal that the appeal was filed in his name not that of his legal representatives. In support of this contention he relies upon Alabhai Vaisurabhai v. Bhura Bhaya, AIR 1937 Bom. 401, Mehar Singh v. Labh Singh (AIR 1932 Lah.305) and Karimullah Khan v. Bhanu Pratap Singh, AIR 1938 Nag. 458. I, however, find that even the decisions of the Bombay, Lahore and Nagpur Courts are conflicting and an appeal filed in the name of a dead person being a nullity cannot be resuscitated either under Order 1, Rule 10, or Sections 151 and 153 CPC. In Mehar Singh v. Labh Singh (AIR 1932 Lah. 305), Johnstone, J., relying upon A.Gopala Krishnayya v. Lakshmana Rao ILR 49 Mad. In Mehar Singh v. Labh Singh (AIR 1932 Lah. 305), Johnstone, J., relying upon A.Gopala Krishnayya v. Lakshmana Rao ILR 49 Mad. 18; AIR 1925 Mad 1210(FB) = (1926) 23 L.W. 418 , held that in an appeal filed against a dead person his legal representatives could be substituted and the delay in such substitution must be excused in exercise of general powers of amendment that vested in a civil court under Section 153, C.P.C. The decision of a Division Bench of the Lahore High Court reported as Roop Chand v. Sardar Khan, AIR 1928 Lah. 359 was distinguished on the ground that it related to the question of abatement. An earlier decision of that court reported as Mt.Boondu v. Moti Chand, AIR 1923 Lah. 652(1), was not cited before Johnstone J. After referring to some of the judgements, the learned Judges have held as follows: In my opinion the powers under Order 1, Rule 10, C.P.C. cannot be exercised to substitute a different person for a dead plaintiff or appellant. The person referred to in this rule means a person in existence who may, of course, be either a human being or a legal person capable of suing or being sued, but it does not include a fictitious person or a person who having died is no longer in existence on the date of the institution of the suit or appeal. A person who is dead has no existence, either in fact, or in law, and he is incapable of instituting a suit or an appeal or performing any act. For the same reason no attorney or counsel of his would be competent to file an appeal or institute a suit, as none can act for, or on behalf of, a person who is dead and has lost his existence. The mistakes of identity that can be corrected under Order 1, Rule 10, C.P.C. are those where through inadvertence or bona fide mistake a wrong person is made a party in place of the one who is the real party. By substituting the name of the correct party the court merely permits the person wrongly impleaded to walk out and his place to be taken by the right one. By substituting the name of the correct party the court merely permits the person wrongly impleaded to walk out and his place to be taken by the right one. But where an appeal or a suit has been instituted in the name of a person who is not in existence, the very act of instituting the suit or lodging the appeal is a nullity and thus there can be no question of putting in his place another as a plaintiff or an appellant. The view that I have expressed above was accepted in some decisions of the courts from which the appellant has cited the above noted authorities. In Hazarimal Bholaram v. Shri Ramchandraswami Dewasthan AIR 1934 Nag 55, it was held that the expression Wrong person used in Order 1, Rule 10, C.P.C. does not mean a dead person and before Order 1, Rule 10, C.P.C. can be applied the plaintiff or the memorandum of appeal must be in existence and the legal representatives of the appellant who is dead at the time of the institution of the appeal cannot be substituted. In a recent decision of the Bombay High Court reported as Bai Pani Vankar v. Madhabhai Galabhai Patel ( AIR 1953 Bom. 356 ) Changla, C.J, has expressed the same view, dissenting from Gopalakrishayya v. Lakshman Rao, ILR 49 Mad. 18: AIR 1925 Mad 1210 (FB) Karimullakhan v. Bhanu Pratabsingh, AIR 1938 Nag 458 and Mehar Singh v. Labh Singh (AIR 1932 Lah. 305). His Lordship preferred the view taken in Rampratab v. Gourishankar, AIR 1924 Bom 109 Veerappan Chetty. Tindal Ponnen, ILR 31 Mad 86, and Sudhir Kumar De v. Amritlal Seal, ILR 1946 2 Cal 611 and observed: An effective order under Order 1, Rule 10, can only be made provided there is a suit or an appeal before the Court, but if the suit or the appeal is a nullity, then any order made in that suit or appeal is equally a nullity. From the above referred judgments, it is clear that the appeal filed in the name of a dead person is a nullity and the same cannot be continued by the legal representatives by substituting them in the place of the deceased appellant. 11. From the above referred judgments, it is clear that the appeal filed in the name of a dead person is a nullity and the same cannot be continued by the legal representatives by substituting them in the place of the deceased appellant. 11. The learned counsel for the respondents having filed the C.M.P. 2298 and 2299 of 1996 seeking for amendment of the prayer and amendment of the cause title placed his reliance on the judgment reported in Union of India v. K. Abborvam (Deceased), 1995 (II) CTC 329 . The relevant portion had been extracted supra. It is the case where the appeal has been filed against the dead person i.e., the respondent. There the court held that it is open for the appellant to file the amendment petition. Even there on the ground of delay the application has been dismissed. There is a short distinction between the appeal filed in the name of a dead person and an appeal filed against a dead person. In fact the Full Bench judgment relied upon in Gopala Krishnayya v. Lakshmana Rao, AIR 1925 Madras 1210, relied upon by the Division Bench judgment reported in Union of India v. K.Abborvam (Deceased) ( 1995 (II) CTC 329 ), had been discussed by the Division Beach in Amar Kaur v. Sadhu Singh (AIR 1961 Punjab 57), wherein the learned Judges had held as follows: Since all the decisions cited on behalf of the appellants are based upon the Full Bench decision of the Madras High Court in Gopala Krishnayya v. Lakshmana Rao, ILR 49 Mad 18: AIR 1925Mad 1210, it is necessary to refer to that case. It was again a case in which the appeal had been instituted by a person who was alive but the respondent was dead at the time of the institution. Subsequently on discovering the mistake the appellant made an application for substitution of the legal representatives of the respondent which was allowed. Upholding that order the learned Judges constituting the Full Bench observed.: Although the appeal may be incompetent owing to the wrong person being named as respondent, the court which deals with it is acting in a suit and as such has full powers under Section 153, C.P.C to direct an amendment of the appeal memorandum. Hence I am in entire agreement with the above view. Hence I am in entire agreement with the above view. In this case, the appeal has been filed nine days subsequent to the death of the appellant. Hence the appeal itself is a nullity and cannot be proceeded with by either substitution of the legal representatives or by way of amendment of cause title. (emphasis supplied) 57. In Ashok Transport Agency v. Awadhesh Kumar reported in 1998 (5) SCC 567 , an eviction suit was filed against the proprietary concern, the proprietor and manager of the concern. The proprietor died prior to filing of the suit. The suit was decreed. The decree was sought to be executed. By observing that the proprietor having died, the proprietary concern was not in existence on the date of filing of the suit and therefore, the suit could have been filed only against the legal representatives of the deceased proprietor, the Apex Court held that the suit having been filed against a dead person, the eviction decree was a nullity and that the same cannot be executed. 58. A careful review of the decisions of the several High Courts relating to substitution of a defendant in a suit in the place of the original defendant makes it clear, (i) that no such substitution can be permitted in a case, where there was a sole defendant, (2) where there are more defendants than one and one of them was dead when the suit was filed, the Courts have held that the legal representatives of the deceased person who were brought on record, subject to the question of limitation, that may be raised by the legal representatives of the deceased person who were brought on record, as the suit had been validly presented in so far as the living defendants are concerned, and (3) where an appeal is filed, against a person who was dead on the date of the presentation of the memorandum of appeal, the Courts have held that the appellant can be permitted to bring the legal representatives of the dead person on record. In other words, the Courts have held that substitution is permissible. In other words, the Courts have held that substitution is permissible. The principle on the basis of which the Courts have taken this view is that an appeal is a continuation of the original proceedings and as the suit had been validly instituted and the defendant died subsequently, an application to bring his legal representatives under Order XXII, Rule 4 is maintainable and the legal representatives can be brought on record. But in cases where there was a sole defendant and he was dead before the suit was instituted all the High Court have held that such a suit is a nullity and no application for amendment of the plaint by deleting the name of the original defendant and substituting another person in his place, can be permitted. 59. The decision relied on by Mr. R. Gandhi, the learned Senior Counsel for the decree holder/respondent, deals with orders passed under Rule 21, Rule 98 CPC and therefore, the same would not lend support to his objections, regarding the maintainability of the revision petition. As rightly contended by the learned Senior Counsel for the revision petitioner that in view of the subsequent amendment to the Code of Civil Procedure, an order passed under Section 47 is revisable and hence, the present revision petition is maintainable. Dismissal of the suit in O.S.No.246 of 2012, for default, filed by the mother, cannot held against the revision petitioner, in challenging the executability of the decree. 60. The decree in O.S.No.317 of 1996, dated 31st March 2008, on the file of the learned District Munsif Court, Udumalpet, is inexecutable, insofar as the dead person or his legal representative is concerned. In the light of the above decisions and discussion, this Court is of the view that the order and decretal order in EA No.25 of 2013 in E.P.No.1 of 2013 in O.S.No.317 of 1996, on the file of the District Munsif Court, Udumalpettai, is liable to be set aside. 61. In the result, the Civil Revision Petition is allowed. No costs. Consequetly, connected Miscellaneous Petition is closed.