Madras High Court
K.Rajamanickam vs P.M.Kanagasabapathy (Died) on 5 June, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
CRP.No.59 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2025
CORAM:
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
C.R.P.No.59 of 2025
and
C.M.P.No.564 of 2025
1.K.Rajamanickam
2.R.Kavitha .. Petitioners
Versus
P.M.Kanagasabapathy (Died)
1.K.Muthusamy
2.P.K.Sengottu Velu
3.K.Chandrasekaran
4.K.Muthulakshmi .. Respondents
Prayer:- Civil Revision Petition filed under Section 115 of Code of Civil
Procedure to set aside the fair and decretal order dated 04.10.2024 made in
R.E.A.No.5 of 2023 in REP.No.132 of 2019 in O.S.No.353 of 2004 on the
file of the II Additional District Judge, Salem.
For Petitioners : Mr.B.Manimaran
For Respondents : Mr.K.Sivasubramanian
for Mr.T.M.Hariharan
Page 1 of 8
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CRP.No.59 of 2025
ORDER
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.
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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. Hence, seeks for allowing this revision.
5. Heard both sides and perused the materials placed on record.
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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
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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
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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.
05.06.2025
dhk
Internet : Yes
Index : Yes/No
Speaking order / Nonspeaking order
Neutral Citation : Yes/No
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To
1. The II Additional District Judge, Salem
2. The Section Officer, VR Section
Madras High Court
N. SATHISH KUMAR, J.
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dhk
05.06.2025
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