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2017 DIGILAW 515 (ORI)

Prabir Ghose v. Biseswar Dharua

2017-05-03

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 18.8.2015 passed by the learned Civil Judge (Senior Division), Sambalpur in Execution Case No.11 of 2012 whereby and whereunder learned executing court rejected the application of the decree holder-petitioner for substitution of the legal representative of the deceased judgment debtor-opposite party no.5. 2. The petitioner as plaintiff instituted Civil Suit No.79 of 2011 in the court of the learned Civil Judge (Senior Division), Sambalpur for a decree directing the defendants opposite parties to obtain permission under Section 22 of the Orissa Land Reforms Act and execute/register sale deed in respect of the suit property pursuant to the agreement dated 21.11.2006 or in the alternative refund an amount of Rs.7 lakhs with interest. The suit was decreed on 9.5.2012 directing the defendants to refund an amount of Rs.7 lakhs with interest @ 5% per annum from 18.8.2008 till realisation. Thereafter, the decree holder levied Execution Case No.11 of 2012 for realisation of the decreetal dues. While the matter stood thus, the decree holder filed an application for substitution of the judgment debtor-opposite party no.5 along with an application for condonation of delay. Learned trial court came to hold that earlier application seeking the same relief was rejected on 7.5.2013. The same has not been challenged. Held so, learned trial court rejected the application. 3. Heard Mr. Ramakanta Mohanty, learned Senior Advocate for the petitioner and Mr. Sanjeev Udgata, learned counsel for the opposite parties 2,4,5(a) to 5(c) and 6. 4. Mr. Mohanty, learned Senior Advocate for the petitioner, submits that the judgment debtor no.5 was the defendant no.5 in the suit. Notice was issued to defendant no.5 by registered post with A.D. The same was returned after valid service of notice. All the defendants were set ex parte. The suit was decreed ex parte. During pendency of the execution petition, the decree holder came to know that defendant no.5 died in the year 2012. Thereafter, the application for substitution was filed. After collecting materials, the petition for substitution was filed. Rejection of the earlier application per se is not a ground to reject the latter application. Since it is a money decree, the same is divisible. Learned trial court has committed manifest illegality in rejecting the application for substitution. 5. Per contra Mr. Udgata, learned counsel for the opposite parties, submits that defendant no.5 died on 4.8.2009. Rejection of the earlier application per se is not a ground to reject the latter application. Since it is a money decree, the same is divisible. Learned trial court has committed manifest illegality in rejecting the application for substitution. 5. Per contra Mr. Udgata, learned counsel for the opposite parties, submits that defendant no.5 died on 4.8.2009. The suit was filed in the year 2011. The suit was filed against a dead man and as such, decree is a nullity. He further submits that the death certificate of defendant no.5 was filed in the court below. In view of the same, learned executing court is justified in rejecting the application for substitution. 6. In Kiran Singh & others v. Chaman Paswan & others, AIR 1954 SC 340 , the apex Court held : “It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.” 7. On the anvil of the decision cited supra, the case may be examined. Admittedly the suit was filed against a dead man. The suit was filed against a dead man. The decree is a nullity. Thus learned executing court is justified in rejecting the application for substitution. 8. With regard to the submission of Mr. Mohanty that it is a money decree and the same is divisible, no such application was filed in the court below. In the absence of the same, this Court refrains itself from passing any order. 9. Accordingly, the petition is dismissed.