Madras High Court

Chinna Kannamal vs Tirupathy on 22 November, 2021

C.R.P.No.833 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 22.11.2021

CORAM

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

C.R.P.No.833 of 2019

Chinna Kannamal ... Petitioner
Versus
1. Tirupathy
2. S.Devendiran
3. S.Anandhan
4. Ranjitha
5. Dhanalakshmi
6. Minor R.Vikram
7. Minor R.Monika ... Respondents

Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, 1908 to set aside the fair and decretal order of the
learned Additional District Munsif, Thirupattur dated 06.10.2017 made
in I.A.No.Nil of 2017 in O.S.No.352 of 2004.

For Petitioner : Mr.Bala Ganesh
for Mr.T.M.Hariharan
For Respondents : No appearance

ORDER

This Civil Revision Petition is directed against an order dated

06.10.2017 made in unnumbered I.A in O.S.No.352 of 2004.

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C.R.P.No.833 of 2019

2. The revision petitioner as plaintiff has filed a suit in

O.S.No.352 of 2004 for specific performance of an agreement of sale

dated 01.08.1997. The suit was originally filed in 2000 and it appears

that the same was numbered later as O.S.No.352 of 2004. After the filing

of the suit, the sole defendant died on 04.12.2005. Unfortunately,

without noticing the fact that the sole defendant died, the suit came to be

decreed on 12.12.2006. Since the decree was against a dead person, the

petitioner could not enforce the decree. Hence, he filed an interlocutory

application in O.S.No.352 of 2004 under Sections 141 nad 151 CPC to

re-open and to reaffirm the decree against the legal representatives of the

deceased sole defendant who died on 04.12.2005. The said application

was dismissed by the lower Court by the impugned order on the ground

that the Court became “functus officio” after passing the decree in the

suit for specific performance. It is further observed that the Court has no

discretionary power to restore a suit which was already disposed of

except under Order IX Rule 9 CPC or Order IX 9 Rule 13 CPC. The

lower Court is wrong and the order of lower Court cannot be sustained.

3. It is not in dispute that the suit was filed against a living

person, namely the defendant. The plaintiff has stated that he had

entered into an agreement dated 01.08.1997. The suit property is a land https://www.mhc.tn.gov.in/judis

C.R.P.No.833 of 2019

admeasuring to an extent of 1.21.5 Hectares in S.No.56/2 in Kathari

Village. It is specifically stated by the revision petitioner that the

plaintiff was not aware about the death of defendant. It is further stated

that the legal heirs of the sole defendant did not inform the Court about

the death of the sole defendant. Therefore, the Court passed judgment

and decree after hearing the arguments of learned counsel appearing for

the defendant. The decree passed in the suit clearly shows that the

judgement was rendered in the suit after hearing the arguments of the

counsel appearing for the defendant. It may be that the defendant was set

ex parte earlier. It appears that the counsel for the defendant was present

and argued the case on merits. Since the defendant died on 04.12.2005,

the decree granted on 12.12.2006 is null and void and there is no doubt

about it. However, the suit cannot be thrown out and there is no

necessity to file a fresh suit by the plaintiff. When the suit is validly

instituted, the suit shall abate as against the deceased defendant if no

application is filed to bring on record the legal heirs within 90 days.

4. It is relevant to refer to Order XXII Rule 4 C.P.C which

reads as follows:

'4. Procedure in case of death of one of several https://www.mhc.tn.gov.in/judis

C.R.P.No.833 of 2019

defendants or of sole defendant (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) .Where—

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the

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C.R.P.No.833 of 2019

Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]'

5. It is admitted that the respondents are the legal

representatives of the deceased sole defendant in the suit. The only

option available to the revision petitioner is to invoke Sub-Rule 5(a) and

5(b) of Rule 4 of Order XXII CPC.

6. It is seen that notice to all respondents in the present revision

petition is served except the first respondent who died on 01.11.2019.

First respondent is one of the legal heirs of Samudi, who is the sole

defendant in the suit. Except first respondent, all others, who are alive,

are served. Since none of the other respondents appeared before this

Court, this Court proceeds to dispose of the revision petition. The first

respondent who died on 01.11.2019 did not engage a counsel. Since the

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