Andhra Pradesh High Court - Amravati
Narava Veera Babu Died vs Baggu Vimala on 4 November, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.3710 of 2019
ORDER:
Question fell for consideration is whether the execution Court is bound to
execute the decree passed against a person died before filing the suit, unless the
decree got set aside by the legal representatives of the deceased.
2. This Civil Revision Petition is filed under Article 227 of the Constitution of
India against the order dated 18.10.2019 in E.P.No.2 of 2018 in O.S.No.52 of 2016
on the file of the Court of Senior Civil Judge, Sompeta, Srikakulam District on the
ground that the Execution Court has committed error in allowing the execution
petition inspite of the ground taken before it that a decree was passed against a
dead person and the decree is null and void and cannot be executed.
3. Heard the learned counsel for the petitioners. Inspite of service of notice
on the respondent, no appearance has been made.
4. The suit is filed for specific performance against Narava Veerababu. The
suit is filed on 06.06.2016. It was decreed ex parte on 11.09.2017. E.P.No.2 of
2018 was filed for execution of the decree under Rule 34 of Order 21 CPC against
Narava Veerababu. JDrs No.2 to 4 were brought on record in the execution
petition as LRs of the sole JDr/defendant. According to the JDr No.2 to 4, the sole
defendant Narava Veerababu died on 19.03.2016. A copy of the death certificate
was filed before the execution Court vide E.A.No.43 of 2018 and the said petition
was allowed on 03.12.2018. They filed the counter reporting that the decree is
null and void as the suit was filed against a dead person. However, the execution
Court allowed the execution petition on the ground that they have not filed any
CRP No.3710 of 2019
petition to set aside the ex parte decree passed against the 1st JDr under Order 9,
Rule 13 CPC before the trial Court, and that the execution Court cannot go beyond
decree.
5. The learned counsel for the petitioners submitted that an execution Court
cannot execute a null and void decree and can decide on the nullity of the decree.
He placed reliance on the following decisions:
1. Kishun @ Ram Kishun (dead) through LRs Vs. Bihari (D) by Lrs.1
"As rightly pointed out by learned counsel for the appellants and fairly agreed to by
learned senior counsel for the respondent, the decree passed by the High Court in
favour of a party who was dead and against a party who was dead, is obviously a
nullity. It is conceded that the legal representatives of neither of the parties were
brought on record in the second appeal and the second appeal stood abated. On this
short ground this appeal is liable to be allowed and the decision of the High Court set
aside."
2. Ashok Transport Agency Vs. Awadhesh Kumar2
"In the circumstances, we are unable to uphold the impugned judgment of the High
Court. In our opinion, the executing court has rightly taken the view that the suit
having been filed against the dead person, the decree was a nullity and could not be
executed. The appeal is accordingly allowed, the impugned judgment of the High
Court is set aside and the order passed by the executing Court is restored. No order as
to costs."
6. General rule is that execution Court cannot go beyond decree. But,
exceptions to the rule are i) nullity of decree as there is no decree in the eye of
law in such case ii) inherent lack of jurisdiction apparent on the face of the record.
In Kiran Singh Vs Chaman Paswan3 it is held that when Court passing the decree
inherently lack jurisdiction, decree is nullity and invalidity can be set up wherever
and whenever it is sought to be enforced, whether in execution or collateral
proceedings.
2005(5) Supreme 388 = AIR 2005 SC 3799: 2005(6) ALT 2(SC)
1998 0 Supreme (SC) 414 = AIR 1999 SC 1484: (1998) 5 SCC 567
AIR 1954 SC 340
CRP No.3710 of 2019
7. As can be seen from the facts and circumstances indicated above, the
execution Court erred in observing that it cannot go beyond decree. There is
jurisdiction to the execution court to decide the nullity of a decree which is sought
to be executed. The nullity of a decree is apparent from the record as the JDr
have to file the copy of the death certificate before the execution Court and the
date of filing of suit and passing of decree is also very much available. As such, the
impugned order is liable to be set aside.
8. In the result, the revision petition is allowed setting aside the order dated
18.10.2019 in E.P.No.2 of 2018 in O.S.No.52 of 2016 on the file of the Court of
Senior Civil Judge, Sompeta, Srikakulam District and the E.P. is dismissed. There
shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________
B.S.BHANUMATHI, J
Dt. 04-11-2022
PNV
