Madras High Court
H.A.Yusuf Sahib Maraikar (Died) vs Mohideen Abdul Kader on 3 March, 2021
C.R.P.(NPD)No.1248 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(NPD) No.1248 of 2016
and C.M.P.No.6955 of 2016
H.A.Yusuf Sahib Maraikar (Died)
Fathima Sulthan
W/o.H.A.Yusuf Sahib Maraikar ... Petitioner
Vs.
Mohideen Abdul Kader
S/o. K.Mohamed Yusuf ... Respondent
Prayer:-
Civil Revision Petition filed under Section 115 of Civil Procedure
Code to set aside the the order and decreetal order passed in E.A.No.39 of
2014 in E.P.No.8 of 2014 in O.S.No.68 of 2007 dated 10.09.2015 on the file
of the Subordinate Judge at Nagapattinam and allow the Civil Revision
Petition.
For Petitioner : Mr.J.R.K.Bhavanantham
For Mr.N.S.M.Md.Jafarullah
For Respondent : No appearance
Page 1 of 6
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)No.1248 of 2016
ORDER
This Civil Revision Petition is directed as against the fair and decretal
order dated 10.09.2015 passed in E.A.No.39 of 2014 in E.P.No.8 of 2014 in
O.S.No.68 of 2007 on the file of the Subordinate Court, Nagapattinam,
thereby, allowing the petition to implead the petitioner herein as legal heir
of the judgment debtor.
2. The respondent herein filed a suit for recovery of possession and
damages in respect of the suit property as against one H.A.Yusuf Sahib
Maraikar. The petitioner herein was set ex-parte and ex-parte decree order
was passed as against the said H.A.Yusuf Sahib Maraikar. Before execution
of the decree, the judgement debtor died. Therefore, the respondent filed a
petition to implead the petitioner herein as legal heir in E.A.No.61 of 2009
in E.P.No.28 of 2009, which was dismissed on 25.08.2010 since the
judgement debtor died. Therefore, the respondent herein filed an
application to set aside the order of abatement passed due to the death of the
judgement debtor. Again, the respondent filed execution petition in
E.P.No.8 of 2014, in which, the respondent filed E.A.No.39 of 2014 to
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)No.1248 of 2016
implead the petitioner herein as wife of the judgement debtor namely,
H.A.Yusuf Sahib Maraikar. The petitioner vehemently contended that she
is not wife of H.A.Yusuf Sahib Maraikar, she is wife of Yusuf Sahib. As
such the respondent utilizing the circumstance, filed the petition to implead
the petitioner as legal heir of the deceased judgement debtor. The Court
below allowed the petition with observation that the contention of the
petitioner can be agitated in the main EP.
3. The learned counsel for the petitioner would submit that Section 50
of Civil Procedure Code is very clear that if the judgement debtor dies
before the decree has been fully satisfied, the holder of the decree may
apply to the Court which passed it to execute the same against the legal
representative of the deceased. In the case on hand, the respondent already
filed the petition to implead the legal heir and the same was dismissed by an
order dated 25.08.2010 in E.A.No.61 of 2009 in E.P.No.28 of 2009. Again,
the respondent filed E.A.No.39 of 2014 in E.P.No.8 of 2014 in O.S.No.68
of 2007 without any iota of proof to show that the petitioner is the legal
representative of the deceased judgement debtor.
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C.R.P.(NPD)No.1248 of 2016
4. Though notice was served on the respondent/plaintiff herein and
his name was printed in the cause list, none appeared on behalf of the
respondent by person or through pleader.
5. On perusal of the records, it revealed that the respondent already
filed the petition to implead the legal heir of the deceased judgement debtor
in E.A.No.61 of 2009 in E.P.No.28 of 2009 and the same was dismissed by
an order dated 25.08.2010. While being so, without even filing any
legalheir ship Certificate, the respondent simply filed E.A.No.39 of 2014 in
E.P.No.8 of 2014 in O.S.No.68 of 2007 to implead the petitioner herein as
legal heir of the deceased judgement debtor. The trial Court ought not to
have decided the issue in the impleading petition.
6. Considering the above facts, this Court finds that the order passed
by the trial Court is perverse and it is liable to be set aside. Accordingly,
the order dated 10.09.2015 passed in E.A.No.39 of 2014 in E.P.No.8 of
2014 in O.S.No.68 of 2007 on the file of the Subordinate Court,
Nagapattinam, is hereby set aside.
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C.R.P.(NPD)No.1248 of 2016
7. Accordingly, this Civil Revision Petition is allowed. There shall be
no order as to costs. Consequently, connected miscellaneous petition is
closed.
03.03.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
mk
To
1. The Subordinate Judge,
Nagapattinam.
2. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)No.1248 of 2016
G.K.ILANTHIRAIYAN, J.
mk
C.R.P.(NPD) No.1248 of 2016
and
C.M.P.No.6955 of 2016
03.03.2021
https://www.mhc.tn.gov.in/judis/
