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2025 DIGILAW 2562 (MAD)

K. Rajamanickam v. P. M. Kanagasabapathy (Died)

2025-06-05

N.SATHISH KUMAR

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ORDER : N. SATHISH KUMAR, J. Challenge has been made to the order passed by the Executing Court dismissing the application filed under Section 47 of the Code of Civil Procedure, the present revision has been filed. 2. The suit has been filed originally by the sole plaintiff as against the defendant in O.S.No.353 of 2004 for recovery of mortgage money. A preliminary decree was passed on 12.01.2007. As the amount has not been piad as directed in the preliminary decree, final decree has been passed on 08.06.2016 in I.A.No.1372 of 2007. To execute the said decree, execution petition has been filed by the legal heirs in R.E.P.No.132 of 2019. The decree has been challenged only on the ground that during the pendency of the final decree proceedings, the plaintiff has died on 27.10.2015, however, the final decree has been passed on 08.06.2016. Therefore, according to the plaintiff decree passed in favour of a dead person is not valid in the eye of law. Further, the respondents have not filed any documents to prove that they are the legal heirs of the deceased plaintiff. An application has been filed by the legal heirs under Section 50 of CPC and they have been recognised by the executing court which is not in accordance with law. 3. The said application has been opposed by the respondent by filing counter. The executing court clearly found that merely quoting wrong provisions of law in bringing the legal heirs will not vitiate the proceedings, the defects is curable and can be cured at any time. As far as the submission that decree in favour of the plaintiff is concerned, the Trial Court has clearly held that decree in favour of a dead person is not nullity as held by B.K.Basha vs. Mohamed Ali and others made in CRP.(NPD).No.771 of 2014 in MP.Nos.1 & 2 of 2014 dated 14.02.2018. Challenging the said order, the present revision has been filed. 4. The learned counsel for the petitioner submitted that the decree cannot be enforced, since the final decree has been passed after the death of the plaintiff. Similarly, legal heirs have been impleaded without any formal petition and wrong provision has been quoted. Further, it is his contention that the amount sought to be recovered is only Rs.27,50,000/-, whereas, the property sought for attachment is worth about Rs.50 lakhs which is impermissible in the law. Similarly, legal heirs have been impleaded without any formal petition and wrong provision has been quoted. Further, it is his contention that the amount sought to be recovered is only Rs.27,50,000/-, whereas, the property sought for attachment is worth about Rs.50 lakhs which is impermissible in the law. Hence, seeks for allowing this revision. 5. Heard both sides and perused the materials placed on record. 6. As far as the first contention that the decree in favour of a dead person is nullity is concerned, such contention has no force for the simple reason that decree against a dead person is construed as nullity and a decree passed in favour of a dead person is not construed as nullity. This proposition has been repeatedly held by this Court time and again. In fact, the Trial Court has also considered the same aspect. Therefore, the contention of the learned counsel in this regard is negated. In this regard, it is useful to refer to an order of this Court in the case of Abdul Azeez Sahib v. Dhanabagiammal and others reported in 1981 SCC OnLine Mad 254, wherein, it is held as follows: “ 3. The learned counsel for the petitioner relying on the two decisions reported in Himangshu Bhusan Kar v. Manindra Mohan Baha, AIR 1954 Cal 205 and Raddulal Bhurmal v. Mahabirprasad Bisesar Kalwar, AIR 1959 Bom 384 , contended that a decree passed in favour of a dead person is not a nullity, and the fact of death not brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making the decree void ab initio and the decree is executable. Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity, though a decree passed against a dead person can be construed as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit as one without jurisdiction and the executing Court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour.” Emphasis supplied 7. Second submission that legal heirs have been impleaded under Section 50 of CPC and it relates to the only judgment debtors not to the decree holders is concerned, this Court is of the view that mere quoting wrong provisions will not take away the rights of the legal heirs of the deceased decree holder to pursue the execution petition. Such contention cannot have force in the eye of law. The other submission that the property sought to be attached is worth about Rs.50 lakhs and the money sought to be recovered is only Rs.27 lakhs is concerned, it is relevant to note that such a plea has to be pleaded only before the Executing Court. Executing Court normally follow the procedure under Order 21 Rule 64 of CPC while selling the property. Further, the Executing Court shall sell the entire property or only a portion of it, as deemed necessary to satisfy the decree. If the petitioner is able to show that the property worth is more than the decretal amount than the value of the amount sought to be recovered, the Executing Court will definitely consider the same and pass appropriate order as contemplated under Order 21 Rule 64 of CPC. 8. In view of the above, I do not find any merits in this revision and the same stands dismissed. No costs. Consequently, connected miscellaneous petition stands closed.