Madras High Court
B.Kumaresan vs P.Ravi on 27 June, 2025
CRP.No.57 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 19.06.2025 Order pronounced on : 27.06.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
CRP.No.57 of 2025
& CMP.No.517 of 2025
B.Kumaresan ..Petitioner
Vs.
1.P.Ravi
2.Sangu Bai
3.Vanathi Devi
4.Yamuna Devi ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to call for records of Lower Court and set aside the order dated
25.09.2024 passed in E.P.No.215 of 2018 in O.S.No.8 of 2013 on the file of the
Principal Sub-Court, Kanchipuram.
For Petitioner : Mr.R.Sivakumar
For Respondents : Mr.J.Ram
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CRP.No.57 of 2025
ORDER
The petitioner is the judgment debtor No.5 in E.P.No.215 of 2018. The
petitioner challenges the order of the Execution Court dated 25.09.2024,
ordering attachment of the property of the petitioner.
2.I have heard Mr.R.Sivakumar, learned counsel for the petitioner and
Mr.J.Ram, learned counsel for the respondents.
3.Mr.R.Sivakumar, learned counsel for the petitioner would submit that
the suit was filed by the 1st respondent/decree holder for recovery of a sum of
Rs.5,07,800/- (Rupees Five Lakhs Seven Thousand and Eight Hundred only),
together with interest on the principal amount of Rs.3,00,000/- (Rupees Three
lakhs only).
4.In O.S.No.8 of 2013 before the Subordinate Court, Kancheepuram, the
sole defendant, Mr.Balasundaram did not file his written statement and hence,
he was set ex-parte on 18.06.2014. However, soon thereafter on 28.06.2014, the
sole defendant died. It is alleged that the decree holder was aware of the death
of the sole defendant and that the decree holder did not bring it to the notice of
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the Court or the legal heirs of the deceased defendant and proceeded to get an
ex-parte decree, which is sought to be put to execution. He would further
submit that Order XXII Rule 4 of CPC mandates that in the event of death of
the sole defendant, the plaintiff has to get an exemption from bringing on
record the legal heirs and pointing out to the procedure adopted by the plaintiff,
the learned counsel for the petitioner would further submit that no such
exemption was also obtained and hence, the decree is a nullity and cannot be
enforced before a Court of law. He would further submit that the consequential
order of attachment of the property passed by the Execution Court is thus
wholly unsustainable.
5.The learned counsel for the petitioner would place reliance on the
decision of this Court in B.Venkatesan Vs. S.Peter Devadass (Deceased) and
Others in CRP.No.1131 of 2023 dated 05.11.2024 and the judgment of the
Hon'ble Supreme Court in T.Gnanavel Vs. T.S.Kanagaraj and Another reported
in (2009) 14 SCC 294, in support of his contentions.
6.The learned counsel for the petitioner would therefore submit that the
Execution Court ought not to have proceeded to order attachment of the
property. He therefore prayed to set aside the order of the Execution Court.
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7.Per contra, Mr.J.Ram, learned counsel for the respondent would submit
that there is no quarrel with regard to the fact that the plaintiff/decree holder did
not obtain exemption under Order XXII Rule 4 of CPC. He would also fairly
submit that even before the decree came to be passed, the defendant had passed
away. He would however submit that the defendant is not a relative or
neighbour of the plaintiff and it was impossible for the plaintiff to even become
aware of the factum of the death of the defendant and therefore, the plaintiff
cannot be found fault with for not brining to the notice of the Court, the death
of the defendant. He would further invite my attention to Order XXII Rule
10(A) of CPC, which casts a duty on the pleader to communicate to the Court,
the death of the party. He would therefore state that the legal heirs of the
defendant cannot escape from the liability by raising such technical objections
and he would state that the legal heirs are bound to obey the decree. He would
therefore pray for dismissal of the Civil Revision Petition.
8.I have carefully considered the submissions advanced by the learned
counsel on either side.
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9.It is not in dispute that on the date of passing of the decree by the Trial
Court, the defendant was not alive. No doubt, under Order XXII Rule 10(A), a
duty is cast on the advocate appearing for a party, to inform the Court about the
demise of his client and thereafter, the Court is required to give notice of such
death to the other party and until then, the contract between the advocate and
the deceased party is deemed to subsist.
10.Order XXII Rule 4 of CPC speaks about the procedure to be adopted
in case of death of one of several defendants or of the sole defendant. In terms
of Order XXII Rule 4 of CPC, the plaintiff may get an exemption from the
Court from the requirement of substituting the legal representatives of any of
the defendants, who failed to file the written statement or having filed the
written statement, failed to contest the suit. However, admittedly in the present
case, the plaintiff has not resorted to recourse under Rule 4 of Order XXII of
CPC.
11.Order XXII Rule 5 further speaks about circumstances where the
plaintiff is ignorant of the death of the defendant and as a result of the same, the
substitution applications could not be filed within the prescribed period and in
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such circumstances, the Rule requires the Court to consider any application
under Section 5 of the Limitation Act, having due regard to the fact of
ignorance of the death of the defendant, if proved.
12.In the decision of B.Venkatesan's case, this Court held that when the
decree was passed without obtaining an exemption under Order XXII Rule 4 of
CPC, the decree against the dead person would only be a nullity in the eye of
law.
13.In T.Ganavel's case, the Hon'ble Supreme Court held that despite
mandate of Order XXII Rule 10(A) of CPC, the exemption under Order XXII
Rule 4 would have to be obtained by the plaintiff, before the pronouncement of
the judgment as against a dead person. However, in the facts of the present
case, it is clear that no such exemption has been obtained. Therefore I have no
hesitation in following the dictum of the Hon'ble Supreme Court in
T.Gnanavel's case and also by this Court in B.Venkatesan's case to hold that the
decree passed in O.S.No.8 of 2013 is a nullity and consequently, the decree
cannot be executed at all and the attachment order passed by the Executing
Court has to be necessarily go. At the same time, merely because the decree is
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declared to be a nullity having been passed against a dead person, it cannot
foreclose the rights of the plaintiff once and for all. It is always open to the
plaintiff to take out appropriate applications to implead the legal heirs of the
deceased sole defendant in O.S.No.8 of 2013 and proceed against them, for
recovery of monies allegedly due under the suit claim.
14.Giving such liberty to the plaintiff, the Civil Revision Petition is
allowed and the order dated 25.09.2024 in E.P.No.215 of 2015 in O.S.No.8 of
2013 on the file of the Principal Sub-Court, Kanchipuram, is hereby set aside.
There shall be no order as to costs. Connected Civil Miscellaneous Petition is
closed.
27.06.2025
Speaking/Non-speaking order
Index : Yes/No
ata
To
1.The Principal Sub-Court, Kancheepuram.
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P.B.BALAJI.J,
ata
Pre-delivery order made in
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27.06.2025
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