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2021 DIGILAW 188 (KER)

Pachakat Khadeeshommabi v. Kadeejommabi

2021-02-25

BECHU KURIAN THOMAS

body2021
JUDGMENT : The effect of a decree against a dead person and the remedy available to a person aggrieved by such a decree arises for consideration in this second appeal. This appeal was admitted on a substantial question of law as to whether the learned District Judge was correct in dismissing the appeal and remanding the suit giving liberty to the parties to implead the legal heirs of the sole plaintiff without setting aside the decree? 2. The short facts necessary for the disposal of this appeal are as follows: One Cheriyabi Kannipura filed a suit for declaration of title and other consequential reliefs on 26.11.2010. While the suit was pending consideration, the sole plaintiff expired on 16.03.2017. Death was reported to the court on 30.03.2017. Even after noting the death of the sole plaintiff died, but the legal heirs did not come on record. Oblivious of the non-impleadment of legal heirs, the court proceeded to hear the arguments on 25.07.2017 and decreed the suit on 26.07.2017. Challenging the decree, defendants preferred a first appeal. It was after issuance of notice in the appeal that it was realized that legal heirs of the sole plaintiff had not been impleaded. The legal heirs were thereafter impleaded in the appeal on 19.01.2018. By judgment dated 13.03.2020, the Appellate Court held the decree to be a nullity but dismissed the appeal and directed the legal heirs to seek recall of the decree after filing petition to implead in the trial court. This judgment is impugned in this second appeal. 3. As mentioned above, while dismissing the appeal the appellate court observed that the decree is a nullity since it was against a dead person and also that the remedy of the legal heirs of the deceased sole plaintiff was to file an application to recall the decree. Reliance was placed upon the decision in, Uma Antherjanam vs Neelakanta Namboothiri (2001 KHC 554). It was further observed that, if an application for impleadment is filed, the same shall be disposed of within a time limit. The suit was also directed to be disposed of in a time-bound manner. 4. The learned Senior counsel Sri.T.Sethumadhavan instructed by Adv. P.V. Preethi submitted that the second appeal is filed mainly for three reasons. It was further observed that, if an application for impleadment is filed, the same shall be disposed of within a time limit. The suit was also directed to be disposed of in a time-bound manner. 4. The learned Senior counsel Sri.T.Sethumadhavan instructed by Adv. P.V. Preethi submitted that the second appeal is filed mainly for three reasons. They are (i) once a decree is found to be a nullity, there was no necessity for recalling the said decree, (ii) the dismissal of the appeal was incorrect as it amounts to confirmation of the trial court decree and (iii) impleadment of legal heirs cannot be automatic as the suit had abated. The learned Senior counsel also submitted that the directions by the Appellate Court indicates a positive direction to implead the legal heirs which prejudices the rights of the appellants. 5. The learned counsel Sri.V.V Surendran appearing on behalf of the legal heirs of the sole plaintiff, on the other hand, while admitting the death of the sole plaintiff submitted that the contentions of the defendants are highly technical and also that pursuant to the impugned judgment of the First Appellate Court, the legal heirs had filed applications to recall the decree and to implead the legal heirs before the trial court. He thus sought for dismissal of this appeal. 6. The principle that a decree in favour of a dead person is a nullity needs no reiteration. It was observed by the Privy Counsel in the decision, Radha Prasad Singh vs Lal Sahib Rai ILR (1891) 13 All 53 (PC), and also in Debi Bakhsh Singh vs Habib Shah (1913) ILR 35 331 (PC), that a decree obtained against a person or a decree passed in favour of a dead person, is a nullity. 7. A reference to the statutory provisions dealing with death of a party to the suit may be apposite in this context. Order XXII of the Code of Civil Procedure, 1908 (for short 'the CPC') deals with the procedure on the death of parties to a suit. If the right to sue survives after the death of any of the parties to a suit, the suit shall not abate, provided, the legal representatives are brought on record within the time allowed, as per O.XXII Rule 1 read with R.3(2) and R.4(3) CPC. If the right to sue survives after the death of any of the parties to a suit, the suit shall not abate, provided, the legal representatives are brought on record within the time allowed, as per O.XXII Rule 1 read with R.3(2) and R.4(3) CPC. Article 120 of the Limitation Act, 1963 provides for a time limit of 90 days from the date of death of the party to implead the legal heirs. Under O.XXII R3(1) CPC, if a sole plaintiff dies, the Court shall cause the legal representatives to be brought on record, if an application on that behalf is made. If there is delay in bringing the legal representatives on record and consequently the suit abates, application can be preferred under O.XXII R. 9 to set aside abatement. If there is a delay of more than 150 days from the date of death in filing the petition to set aside abatement (as per Article 121 of the Limitation Act), an application to condone the delay in filing the petition to set aside abatement also needs to be filed. As per O.XXII R.4(5) CPC, if the suit had abated on account of the non-impleadment of a defendant, the court can, if sufficient cause is shown as per section 5 of the Limitation Act, 1963, consider the application to set aside abatement after condoning the delay. If a party to the suit dies after the conclusion of hearing but before the pronouncement of judgment, under O.XXII R.6, the judgment can be pronounced, notwithstanding the death of the party and there shall be no abatement and the judgment shall have the same effect as if it was passed before the death took place. Reference can profitably be made to the observations in Amba Bai and Others v. Gopal and Others [ (2001) 5 SCC 570 ] and the decision in Sankaran (Died) and others v. Devaki Amma (Died) and Others ( 2007 (1) KLT 673 ). 8. In the instant case, the suit had abated even before the hearing commenced. Without noticing the abatement, the trial court proceeded to hear the counsel and pass a judgment decreeing the suit. Since the suit had abated, no decree could have been passed by the trial court and the decree passed is a nullity. 8. In the instant case, the suit had abated even before the hearing commenced. Without noticing the abatement, the trial court proceeded to hear the counsel and pass a judgment decreeing the suit. Since the suit had abated, no decree could have been passed by the trial court and the decree passed is a nullity. Once a decree is a nullity, due to the death of the sole plaintiff, the remedy of the legal representatives is to implead and if the suit has abated, get the abatement set aside and then obtain a judgment on merits. 9. In the decision in Meenakshy Pillayathiri Amma vs Lakshmi ( 1967 KLT 777 ), this court was considering a case where an exparte decree was passed against a defendant who had died two days prior to the passing of the decree, and thereafter the plaintiff filed an application to set aside the abatement and to implead the legal heirs. The learned Munsiff assumed the application to be one to set aside the exparte decree and on that basis rejected the applications. It was reasoned that an exparte decree can be set aside only by an application filed by the defendant and not by the plaintiff. It was also found by the learned Munsiff that the remedy of the plaintiff is to institute a fresh suit to set aside the decree since it is a nullity. This court held that the applications filed by the plaintiff to set aside the abatement and to implead the legal heirs were proper and that the provisions in Order IX CPC do not apply to a dead person. 10. In the decision in Assyamma v. Aisabi ( 1976 KLT 101 ), this court was called upon to consider the effect of a decree passed in appeal, where one respondent had died during the pendency of the appeal, much before the hearing of the appeal itself. It was held that the proper course in the circumstances to be adopted was to set aside the ineffective decree of the appellate court and give the appellant an opportunity to take steps that are necessary to have the abatement set aside and to have the matter proceeded after bringing on record, the legal representatives of the deceased person. 11. It was held that the proper course in the circumstances to be adopted was to set aside the ineffective decree of the appellate court and give the appellant an opportunity to take steps that are necessary to have the abatement set aside and to have the matter proceeded after bringing on record, the legal representatives of the deceased person. 11. In the decision in Paru vs Devaki Varassiar ( 1992 (2) KLT 687 ), Balasubramanyan J. (as His Lordship then was) after distinguishing the decision in Assyamma's case on the ground that the date of discovery of the fact of death was not clear from the said decision, held that “once the legal representatives have come to know that the appeal has been decided on merits at a time when their predecessor-in-interest had died, according to me the only remedy available to them is to move that court to get the decree reopened and to get themselves impleaded in that appeal”. While coming to the above conclusion, it was also held that “no principle of law enables or entitles the legal representatives to straightaway file a second appeal before this court on an assertion that the decree of the lower appellate court passed against their predecessor-in-interest, who was the sole applicant therein was a nullity.” 12. In Uma Antherjanam vs Neelakanta Namboothiri (ILR 2001 (2) Ker. 142), it was held that when a decree passed by the lower court becomes a nullity, there is no necessity to go into the judgment and the appeal has to be dismissed. 13. A decree which is a nullity, cannot create or extinguish any rights in any person in whose favour the decree remains. It is as good as no decree in existence. However, by the principles of abatement, after the death of a person, the proceedings in litigation falls into a state of suspense and if within the time permitted, the legal representatives are not brought on record, the suit falls into a state of abatement, especially if the deceased is a sole plaintiff or a sole defendant. During the period when the proceedings are in a state of suspense no act, involving a decision on merits of the cause of action pleaded in the suit as against that dead person can be taken. During the period when the proceedings are in a state of suspense no act, involving a decision on merits of the cause of action pleaded in the suit as against that dead person can be taken. Once, the suit falls into the state of abatement, no proceedings in the suit remain alive as against a person and anything done in that suit thereafter is of no effect and void. 14. The remedy of a person who is a legal representative of a dead person against whom a decree is passed, is to file a petition to set aside the abatement (if suit had abated) and to implead the legal heirs and if there is a delay in filing the above petitions, seek condonation of delay also. Since the decree is passed in favour of a person or against a dead person, there is no decree in the eye of law warranting a setting aside by a superior court. Therefore, it is generally not necessary to set aside a decree, which is a nullity. 15. However, the above narrated situations are all instances where the decree is adverse to the dead person. In such instances, the legal representatives would of course be interested to pursue the litigation and bring to the notice of the court, the nature of nullity of the decree. In situations as in the present, where a sole plaintiff dies during the pendency of the litigation, and without noticing the death and after the suit abates, a decree is passed in favour of the sole plaintiff, a different approach may be required. There must be a remedy for such a defendant, who is faced with an adverse decree, which is no doubt a nullity, but, the legal representatives for some reason, purposely or otherwise, had not come on record. In such instances, should the defendant wait until the legal representatives graciously come forward with an application intimating the abatement of the suit, the nullity of the decree and also to implead themselves? Such utopian instances may seldom occur. A person who faces an adverse decree must have a forum to ventilate his grievance. Since a decree, even if it is a nullity, remains on record, the aggrieved must have a remedy to get even such a decree, effaced from the records. 16. Such utopian instances may seldom occur. A person who faces an adverse decree must have a forum to ventilate his grievance. Since a decree, even if it is a nullity, remains on record, the aggrieved must have a remedy to get even such a decree, effaced from the records. 16. In the decision in Paru’s case (supra), the decree of the trial court was against the 2nd defendant, who was the sole appellant before the first appellate court. Second appeal was filed by the legal representatives of the 2nd defendant, who were already on record and were facing an adverse decree. In Uma Antherjanam’s case (supra), the trial court had decreed the suit and the first appeal was filed by the 1st defendant. The 1st defendant was the sole appellant and he died during the appeal. Defendants 2 & 3, who were the predecessors-in-interest of the deceased sole appellant, filed the second appeal. In both the above cases, circumstances required the legal representatives to only implead or substitute themselves as legal representatives and continue the proceedings. The very application filed by the legal representatives itself would be sufficient to efface the decree from the records in the above cases. 17. Contrary to the factual situation in the above cases referred, in the present dispute on hand, the defendants are facing an adverse decree against them. The decree was in favour of the dead plaintiff. Though for all purposes the decree is a nullity, unless the decree is effaced, the defendants will be prejudiced. If the legal representatives do not voluntarily come on record to efface the decree, the defendants will no doubt suffer prejudice. A devious or a wily legal representative of a deceased plaintiff can even misuse the decree, behind the back of an unknowing defendant. A remedy must be available to the defendants in such cases. The remedy of filing an appeal challenging the decree ought to be available to such a defendant. Once such a challenge is preferred by the defendant, who faces an adverse decree, the appellate court after declaring that the decree is a nullity, can relegate the legal representatives to move appropriate applications for setting aside the abatement and for impleadment. The remedy of filing an appeal challenging the decree ought to be available to such a defendant. Once such a challenge is preferred by the defendant, who faces an adverse decree, the appellate court after declaring that the decree is a nullity, can relegate the legal representatives to move appropriate applications for setting aside the abatement and for impleadment. The declaration as mentioned above is necessary to prevent a decree, which is a nullity, from being misused by any person who is a beneficiary under such a non-est decree and also to prevent multiplicity of proceedings. 18. In the instant case, an incongruity is created by the nature of order passed in the first appeal. Even though the appellate court held the decree of the trial court to be a nullity, it committed an error by dismissing the appeal after holding that an application must be filed to recall the decree. Once the appellate court declares a decree to be a nullity, an application to recall the decree is redundant and by dismissing the appeal, the appellate court in effect confirmed the decree which was a nullity. Thus the dismissal of the first appeal was incorrect and the appeal ought to have been allowed. I also hold that the observations of the First Appellate Court that the legal heirs of the deceased plaintiff are at liberty to file applications before the lower court to recall the decree was unnecessary and redundant in law. 19. The apprehension of the appellants that the direction of the First Appellate Court to the trial court to dispose of the application, to be filed and the suit itself, tantamount to an affirmative direction to allow those applications is misplaced. The Appellate Court has only observed that the application for impleadment if filed, must be disposed of. There is no indication that the disposal must be in favour of either of the parties. Manner of consideration of the application, is no doubt, left to the discretion of the trial court. 20. In conclusion, the procedure to be adopted, once a decree is found to be a nullity on account of it having been passed in favour or against a dead person is twofold depending on the circumstances. Manner of consideration of the application, is no doubt, left to the discretion of the trial court. 20. In conclusion, the procedure to be adopted, once a decree is found to be a nullity on account of it having been passed in favour or against a dead person is twofold depending on the circumstances. (i) If the decree is against a dead person, the legal representatives can implead themselves in the suit or appeal and continue the proceedings treating the decree as a nullity, (ii) if the decree is in favour of a dead person, and the legal representatives have not come on record pointing out the nullity, the aggrieved person can prefer an appeal, and if the court finds the decree to be a nullity, it can direct the legal representatives to prefer appropriate applications to attempt to continue the proceedings from the stage at which the party to the suit died. In the above process, if abatement of the suit has set in, the remedy of the legal representatives is to apply for setting aside the abatement. If there is a delay in filing the application to set aside abatement, it is needless to mention that the application must be accompanied by a petition to condone the delay. A further application in the form of impleading the legal heirs is also necessary to make the process complete. 21. In the peculiar circumstances arising in the case, I am of the view that the legal heirs of the deceased sole plaintiff must be allowed to prefer the applications as stated above, to obtain appropriate orders from the trial court. 22. With the aforesaid observations, judgment in A.S NO.1 of 2017 on the files of the District Court, Kavaratti, Union Territory of Lakshadweep is set aside to the extent it dismissed the appeal and directed filing of an application to recall the decree. The finding in the said judgment that the decree in O.S No.02 of 2010 on the files of the Subordinate Judges Court, Union Territory of Lakshadweep, Amini Island, is a nullity, is affirmed. The trial court shall dispose of the applications, if any, filed in O.S No.02 of 2010 within a period of three months from the date of appearance fixed in this judgment, after granting sufficient opportunity to the parties in the suit, bearing in mind that this is a suit of the year 2010. The trial court shall dispose of the applications, if any, filed in O.S No.02 of 2010 within a period of three months from the date of appearance fixed in this judgment, after granting sufficient opportunity to the parties in the suit, bearing in mind that this is a suit of the year 2010. The parties shall appear before the Sub Court, Union Territory of Lakshadweep, Amini Island, on 05.04.2021 to enable timely consideration and disposal of all proceedings. In the event of non appearance on the date fixed as above, the consequences shall follow. This appeal is allowed as above.