Madras High Court
R.Radha vs M/S.Shriram Chits Tn (Pvt) Limited on 19 September, 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 11.09.2025 Order pronounced on : 19.09.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
CRP.No.1033 of 2023
& CMP.Nos.20961 & 7450 of 2023
R.Radha ..Petitioner
Vs.
1.M/s.Shriram Chits TN (Pvt) Limited,
Rep. by its authorised signatory
A.Jayasundari,
No.6, L.B.Road, Adyar,
Chennai – 600 020.
2.S.Ravikumar ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the order and decree dated 18.11.2022 made in E.A.No.1 of
2019 in E.P.No.3599 of 2017 in A.R.C.No.819 of 2016 on the file of the XXV
Assistant City Civil Court, Chennai.
For Petitioner : Mr.V.G.Suresh Kumar
For Respondents : Mr.S.Prabhu for R2
No appearance for R1
ORDER
The 2nd judgment debtor in the execution proceedings is the revision
petitioner.
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2.I have heard Mr.V.G.Suresh Kumar, learned counsel for the revision
petitioner and Mr.S.Prabhu, learned counsel for the 2nd respondent.
3.Mr.V.G.Suresh Kumar, learned counsel for the revision petitioner
would contend that ARC proceedings were initiated against the principal
borrower, one Mr.Damodaran, three persons, including the revision petitioner,
stood as surety and the ARC proceedings culminated in an award dated
07.02.2017 for payment of Rs.2,10,455/-, together with interest at 24% per
annum. He would further contend that the execution petition was filed, in order
to recover the amounts due and payable under the award and that in the said
execution petition, the revision petitioner filed an application under Section 47
of CPC, mainly contending that even on the date of initiation of the
proceedings, the principal borrower, Damodaran had passed away and further,
it is also contended that the revision petitioner was not served in the
proceedings.
4.The learned counsel for the revision petitioner would therefore contend
that the proceedings, having been taken against a dead person, is a nullity and
the executing Court, without appreciating the legal submissions advanced by
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the revision petitioner, has dismissed the Section 47 petition. It is also
contended by the learned counsel for the petitioner that the revision petitioner,
being only a surety, would also stand to lose a valuable right to recover the
amounts paid on behalf of the principal borrower, if any and therefore, even on
this ground, the learned counsel for the petitioner would contend that the
Section 47 petition was not only maintainable, but also entitled to be allowed as
prayed for. In support of his contentions, the learned counsel for the petitioner
has relied on the decision of this Court in M.Dhandapani Vs.
P.K.Ramakrishnan, reported in 2013 (3) MWN (Civil) 561.
5.Per contra, Mr.S.Prabhu, learned counsel for the 2nd respondent/decree
holder would submit that the petitioner was served with summons and she has
also engaged a counsel and participated in the proceedings and a false stand has
been taken in the Section 47 petition, as if the petitioner was not put on notice
in the ARC proceedings. He would further state that it was the duty of the
sureties to have at least informed the Court and the decree holder about the
death of the principal borrower, Damodaran. Having failed to do so, the
petitioner has to suffer the consequences and they cannot complain off having
lost any valuable right to get reimbursement of the monies, which they may be
forced to settle, on account of being sureties. He would also rely on the
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decision of the Division Bench of the Lahore High Court in Roop Chand Vs.
Sardar Khan and others, reported in AIR 1928 Lahore 359.
6.I have carefully considered the submissions advanced by the learned
counsel on either side. I have also gone through the order passed by the XXV
Assistant City Civil Court, Chennai, in E.A.No.1 of 2019, which is the
application under Section 47 of CPC.
7.No doubt, as contended by the learned counsel for the revision
petitioner, on the date of the proceedings having been initiated, the original
borrower, Damodaran was not alive. The same is evidenced by a Death
Certificate, which has been produced only in revision, by the learned counsel
for the petitioner. The Death Certificate evidences that the said Damodaran died
on 14.12.2015 and the Death Certificate has been issued by the Department of
Municipal Administration and Water Supply, Government of Tamil Nadu.
However, the said factum of death of the said Damodaran was not brought to
the notice of the District Registrar of Chits. In fact, I find that the revision
petitioner has even filed a counter in the ARC proceedings dated 03.03.2017,
only denying her liability to pay the amount demanded by the 2nd respondent.
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8.Therefore, as rightly contended by the learned counsel for the 2nd
respondent, the case projected in the Section 47 petition that the petitioner was
not put on notice is clearly unsustainable. However, even otherwise, the award,
which was passed in the ARC proceedings in ARC.No.819 of 2016, is joint and
severable and it cannot be contended by the revision petitioner, one of the
sureties, that in view of the proceedings having been taken against a dead
person, namely, the principal borrower, the entire award itself would become a
nullity.
9.In M.Dhandapani's case, stated supra, this Court was dealing with a
question where the legal representatives of the dead person contended that the
decree was inexecutable. Under such circumstances, this Court held that the
decree was a nullity. In fact, at paragraph No.58, this Court has summarized the
legal position by holding that “ that no such substitution can be permitted in a
case, where there was as sole Defendant, (2) where there are more Defendants
than one and one of them was dead when the suit was filed, the Courts have
held that the Legal Representatives of the deceased person, who were brought
on record, subject to the question of limitation, that may be raised by the Legal
Representatives of the deceased person, who were brought on record, as the
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Suit had been validly presented in so far as the living Defendants are
concerned”.
10.In Roop Chand's case, stated supra, the Division Bench of the Lahore
High Court, which in fact was also considered by this Court in M.Dhandapani's
case, held that if a suit is brought against number of defendants and one of
them happens to be dead at the time of institution of the suit, then, the Court is
not obliged to dismiss the suit against other defendants, but only strike off the
name of the person who was dead even before institution of the suit, under
Order I Rule 10 of CPC and proceed against the other defendants. The ratio laid
down by the Division Bench of the Lahore High Court would squarely apply to
the facts of the present case.
11.It is only open to the legal representatives of the deceased, original
borrower, Damodaran to contend that the decree is a nullity as against them,
since the proceedings have been taken against a dead person. The said
contention is however not available to be taken by the other persons, who have
been proceeded against, namely the sureties, including the revision petitioner.
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12.Further, as rightly contended by the learned counsel for the 2nd
respondent, even the factum of death was not established before the Courts
below and only before this Court, the Death Certificate has been produced. In
fact, the executing Court has observed that the revision petitioner has not even
proved the factum of death of the said Damodaran on 14.12.2015. The
executing Court has rightly held that as guarantor / surety, the petitioner is
liable to settle the award amount and rightly proceeded to dismiss the Section
47 petition. I do not find any patent error or illegality committed by the
executing Court in dismissing the Section 47 petition, warranting interference
in this revision.
13.In fine, the Civil Revision Petition is dismissed. There shall be no
order as to costs. Connected Civil Miscellaneous Petitions are closed.
19.09.2025
Neutral Citation : Yes/No
Speaking/Non-speaking order
Index : Yes/No
ata
To
The XXV Assistant City Civil Court, Chennai.
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P.B.BALAJI.J,
ata
Pre-delivery order made in
& CMP.Nos.2096 & 7450 of 2023
19.09.2025
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