Minor Vivekanandan v. Annamalai

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.08.2020

CORAM:

THE HONOURABLE MR.JUSTICE P.VELMURUGAN C.R.P.(NPD)No.

of and M.P.No.

1 of Vivekanandan (Sole petitioner declared as major and his Grandfather/Guardian Sundaram discharged from Guardianship as per the order dated 19.02.2002 made in C.R.P.(NPD) No.2277 of 2011) .. Petitioner Vs.

Annamalai .. Respondent Prayer: Civil Revision Petition filed under Section 115 of C.P.C. to set aside the fair order and decreetal order of the learned Principal District Munsif Cum J.M.-I, Cheyyar, Thiruvannamalai District in O.E.A.No.364 of 2009 in E.P.No.58 of 2009 in O.S.No.224 of 2002, dated 11.04.2011. For Petitioner : Mr.C.Venkatesan For Respondent : Mr.P.Vasanth - - - - - 1/19

O R D E R

The respondent herein filed the suit against the father and mother of the petitioner herein in O.S.No.224 of 2002, on the file of the learned Subordinate Judge, Cheyyar, Thiruvannamalai District, for recovery of a sum of Rs.50,000/- along with interest. The said suit was decreed on 10.12.2003. The respondent herein, filed an Execution Petition in E.P.No.58 of 2009 in O.S.No.224 of 2002 on the file of the learned Principal District Munsif Cum J.M.I, Cheyyar, Thiruvannamalai District. During the pendency of the said E.P., the guardian of the petitioner herein has filed a petition under Section 47 of C.P.C. in O.E.A.No.364 of 2009 in E.P.No.58 of 2009. After filing of counter and enquiry, the said O.E.A. was dismissed. Challenging the said dismissal order dated 11.04.2011, passed in O.E.A.No.364 of 2009 in E.P.No.58 of 2009, the petitioner is before this Court with this revision.

2. The learned counsel appearing for the petitioner would submit that the Execution petition has been filed for attachment and sale of an immovable property originally belonged to the second and third defendants in the said suit in O.S.No.224 of 2002 and that the decree passed in the said suit itself is void. The first defendant in the said suit is a Financial Corporation and the second and third defendants were the Managing 2/19

Partners. During the pendency of the suit, the second and third defendants in the said suit have died and without impleading the legal representative / petitioner herein in the said suit, the respondent herein has obtained an ex parte decree on 10.12.2003. As the said decree has been passed against dead persons, the decree is a nullity and the same cannot be executed. The third defendant in the suit passed away on 20.12.2002 and the second defendant passed away on 05.11.2003. The LRs of the defendants 2 and 3 were not brought on record and the respondent herein has not taken any steps to bring the LRs on record and tried the suit. Since the first defendant was a partnership firm, the second and third defendants in the suit have died and the LRs were not brought on record and due to their non appearance, the suit has been decreed ex parte on 10.12.2003.

3. The learned counsel further contended that the respondent herein has failed to implead the minor petitioner in the suit. At the time of the death of the second and third defendants, the petitioner herein was a minor and without impleading him, obtained the ex parte decree. The respondent was aware of the demise of the second and third defendants / judgement debtors, but he failed to take any steps to implead the petitioner herein i.e. minor Vivekanandan in the said suit. Therefore, the decree is non est in law and 3/19

void as it was obtained by respondent / decree holder fraudulently. Further according to the learned counsel, the suit was abated as against the third defendant / one of the judgement debtors as the respondent/plaintiff has failed to implead the petitioner herein in the said suit. The adjudication order reveals that the suit was dismissed as against the third defendant on 24.03.2003, as the respondent/plaintiff herein failed to take steps. Later, the suit as against the third defendant has not been restored. Therefore, there cannot be any decree passed as against the third defendant / one of the judgement debtors.

4. The learned counsel further submitted that the property sought to be attached in the execution petition were purchased by the third defendants from and out of their terminal benefits of the guardian of the petitioner herein. The said property was given by the guardian of the petitioner herein to the third defendant as sridhana and the same was purchased solely from his terminal benefits. The said property is the absolute property of the third defendant, for which the minor petitioner alone has to be benefited.

5. According to the learned counsel, the petitioner herein while he was a minor was not brought on record in the said suit and the petitioner was not 4/19

given any opportunity to contest the suit. The decree has been obtained as against dead persons and therefore it is non est in law and void ab initio and cannot be executed. The decree passed after the death of the judgement debtors and an execution petition based on such a void decree is not maintainable and it is liable to be dismissed.

6. In the Execution petition, the names of the defendants 2 and 3 were mentioned as deceased and purposefully the respondent has not disclosed the date of the death and he has not whispered when the respondent came to know about the death of the deceased defendants. The respondent has filed the Execution petition and has not chosen to file a petition to bring on record the LRs of the deceased 2nd and 3rd defendants in the suit.

7. Further according to the learned counsel for the petitioner, the respondent has not obtained any permission under Order XXII Rule 4 (4) of C.P.C. and purposefully delayed the filing of the Execution petition. The third defendant expired during the pendency of the suit and after knowing the fact, the respondent instead of bringing the LRs on record, he allowed the Trial Court for dismissal of the suit as against the third defendant. After receiving the decree and judgement, the respondent ought to have filed a 5/19

petition for correcting the decree and judgement as against the third defendant, but without doing that the respondent herein has filed the execution petition as against the dismissal of the decree against the third defendant.

8. The learned counsel has further relied on a judgement of this Court in Elisa and Others Vs. A.Doss reported in AIR 1992 Madras 159 and submitted that as per Order XXII Rule 4(4) of C.P.C., on the death of a defendant after filing of suit and after service of summons ex parte decree against defendant without the plaintiff bringing heirs of the deceased defendant on record and without applying for and obtaining exemption under Order XXII Rule 4(4) of the C.P.C., is not executable against the legal representatives of the deceased defendant. Further, the learned counsel would submit that the decree obtained against the dead persons without complying with Order XXII Rule 4(4) of C.P.C. is a nullity and not executable against the LRs of the deceased defendant.

9. Further, the learned counsel relied on a judgement of the Hon'ble Supreme Court in Dhurandhar Prasad Singh Vs. Jai Prakash University & oth, reported in AIR 2001 SC 2552(1). In this case, the Hon'ble Supreme 6/19

Court has held that under Order XXII Rules 3, 4 and 10 abatement of suit on death of party and devolution of interest treated distinctly and if the LRs of the deceased party were not brought on record automatic abatement is provided under Rules 3 and 4 and no such procedure is prescribed under Rule 10 in cases of assignment, creation and devolution of interest during suit. The learned counsel further placed reliance on the judgement of the Hon'ble Supreme Court in T.Gnanavel Vs. T.S.Kanagaraj reported in AIR 2009 SC 2367 and a judgement of this Court in Venkataramana and 6 others Vs. N.Munuswamy Naidu reported in 2010 (4) CTC 640 to substantiate his contention.

10. Further according to the learned counsel, since the respondent has not got any order of exemption under Order XXII Rule 4(4) of C.P.C. in the suit within the limitation period before the trial Court and straight away the respondent/plaintiff has brought the minor LR in the Execution petition is not maintainable. His main contention is that the decree against dead persons is also null and void as per the provision of the C.P.C. and the decree and judgement is not valid and the Execution petition is not maintainable. However, the Court below failed to consider these aspects and dismissed the application filed by the Guardian of the minor petitioner herein under Section 7/19

47 of C.P.C. and therefore it warrants interference of this Court.

11. The learned counsel appearing for the respondent/plaintiff would submit that the plaintiff was not aware of the death of the deceased defendants and it is the duty of the learned counsel for the petitioner to bring it to the notice of the Court. The deceased defendants were served suit notice and they entered appearance through Counsel. After entering appearance, during the pendency of the suit, the third defendant died on 20.12.2002 and the second defendant died on 05.11.2003. The respondent was not aware of the same till passing of the decree. It is the duty of the learned Counsel for the petitioner to bring the said fact before the Court giving particulars about the LRs of the deceased defendants and then only the respondent/plaintiff can take steps.

Though the petitioner has stated in his petition that the respondent is aware of the fact and that the respondent has attended the funeral function of the deceased respondents and further the office of the learned counsel for the respondent is also in the same street where the deceased defendants were living and therefore knowing fully well, he failed to take any steps to bring the LRs on record i.e. impleading the minor petitioner but got the ex parte decree.

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12. According to the learned counsel for the respondent/plaintiff the Guardian of the minor petitioner who was examined as P.W.1 in the said O.E.A.No.364 of 2009, in his evidence has stated that he was not aware as to whether the respondent/plaintiff was aware of the death of the deceased second and third defendants. Further, he has also stated in his evidence that he is not aware as to whether the office of the learned counsel for the respondent was in the same street where the deceased were living.

Therefore, he has not proved the fact mentioned in the petition and therefore the Court below after considering the entire facts that the respondent was not aware of the death of the deceased second and third defendants and that the second and third defendants appeared through counsel in the Suit and that the learned counsel has not filed any memo or intimated the trial Court that they died and furnished the particulars of the LRs, so in the absence of the same, the respondent can proceed against them under Order XXII Rule 4(4) of C.P.C. after the death of the defendants 2 and 3 and the respondent/plaintiff obtained the decree since the said facts were not brought to the notice of the Court. If he had suppressed the fact and obtained the decree, than only it is not valid.

13. Further, the learned counsel for the respondent has stated that the 9/19

contention of the petitioner that the property was purchased by the guardian of the minor petitioner in the name of third defendant and therefore the property cannot be attached and sold and the Execution Court has not gone into the title of the property is not correct as the Execution Court has rightly appreciated the entire oral and documentary evidence and dismissed the petition. Therefore, there is no merit in the revision and the same is liable to be dismissed.

14. I have heard the learned counsel on either side and also perused the entire records carefully.

15. Originally, the respondent herein filed a suit against one Selvamani Finance Corporation through its Managing Partners Mr.Selvamani and Mrs.Thembavani. The said suit was filed in O.S.No.224 of 2002 on the file of the learned Subordinate Judge, Cheyyar. In the said suit, suit notice was served to all the above said defendants. In the said suit an ex parte decree was passed on 10.12.2003. Thereafter, the respondent filed an Execution Petition before the trial Court in E.P.No.58 of 2009 and in the said E.P., the petitioner herein through his guardian filed a petition under Section 47 of C.P.C. and the said petition was taken on filed in O.E.A.No.364 of 2009 in 10/19

E.P.No.58 of 2009. the said petition was dismissed and challenging the same the petitioner in the said O.E.A.No.364 of 2009 is before this Court by way of this revision.

16. The main contention of the petitioner is that the second and third defendants in the said suit were the parents of the petitioner. During the pendency of the suit, his parents died and the respondent without taking any steps to bring him as LR of the second and third defendants, suppressing the fact about the death of the second and third defendants, obtained an ex parte decree. Thereafter, he filed an execution petition showing the second and third defendants as deceased in the said E.P. and the petitioner was shown as the respondent through his guardian. During the pendency of the E.P. the petitioner filed a petition under Section 47 of C.P.C.

stating that the learned Judge failed to consider the fact that the respondent herein failed to bring the LRs on record in the above said suit and got a decree against dead persons and while filing the execution petition shown their minor son as respondent and tries to executed the decree. Therefore, the petitioner filed a petition under Section 47 of C.P.C. through his guardian and the execution Court failed to consider the nature of decree obtained by the respondent and that the same is null and void and not binding on the minor petitioner.

17. The further contention of the petitioner is that though the respondent is aware of the fact about the death of the deceased second and third defendants he neither filed any petition to bring the petitioner as LR nor obtained any exemption from the Court as provided under Order XXII Rule 4(4) of C.P.C. therefore the decree is a nullity and non executable and therefore the revision has been filed.

18. According to the respondent, he was not aware of the fact that during the pendency of the suit the second and third respondent died. That after service of suit notice, the defendants in the suit entered appearance through counsel and subsequently they remained ex parte and therefore ex parte decree came to be passed on 10.12.2003. In order to realise the decree only, he filed the execution petition in E.P.No.58 of 2009 in O.S.No.224 of 2002. After two years, they filed a counter on 20.10.2009 and after that they also filed a petition under Section 47 of C.P.C. challenging the decree as against the dead persons as null and void. They took two years to file the counter in the execution petition and after filing the counter they filed this petition under Section 47 of C.P.C., therefore their intention is only to protract the case. Further they have not produced any evidence to show that 12/19

the property purchased by the guardian of the petitioner in the name of the mother of the minor petitioner and they have not even filed any document to show that the property is an exclusive property of the mother of the minor petitioner namely the 3rd defendant. Further, they have not even produced any evidence to show that the respondent was aware of the death of the deceased second and third defendants in the suit and parents of the present petitioner. Therefore, there is no merit in the case.

19. A careful perusal of the records available on record would show that the suit was filed in the year 2002 i.e. on 09.12.2002 and the ex parte decree was passed on 10.12.2003. The execution petition was filed on 04.06.2007, in which, the petitioner filed his counter on 20.10.2009 and thereafter, he filed a petition under Section 47 of C.P.C. on 16.11.2009, stating that the decree was passed against dead persons and the same is non est in law. Though in his petition, he has averred that the respondent attended the funeral function of the deceased defendants, but when the guardian of the petitioner was examined as P.W.1 in the said O.E.A.No.364 of 2009, he has admitted that he was not aware of the fact as to whether the respondent was aware of the death of the defendants 2 and 3 and attended the funeral function and also the other fact that the learned counsel appearing for 13/19

the respondent has his office very near to the house of the deceased defendants and that the learned counsel for the respondent was aware of their demise.

20. There is no doubt that during the pendency of the suit if any party dies, then the same has to be recorded and the plaintiff has to bring the LRs of the deceased plaintiff or defendant on record and proceed with the suit in accordance with law. If the same is not brought to the notice of the plaintiff or the Court and they can proceed with the case as if they are alive. So in this case also though the third defendant is said to have died on 20.12.2002 and the second defendant is said to have died on 05.11.2003, ex parte decree was passed in the suit on 10.12.2003. So on the date of passing of the ex parte decree the second and third defendants were no more. The certified copies of the death certificates of both the defendants were filed which reveals the date of the death of the second and third defendants and it is much prior to the ex parte decree passed by the Court on 10.12.2003.

21. Now the point which is to be decided is as to whether the respondent/plaintiff was aware of the fact about the death of the defendants 2 and 3 or the learned counsel for the defendants brought to the notice either to 14/19

the plaintiff or the Court by way of filing a memo and also the further duty on the part of the learned counsel for the defendant not only to bring the notice of the Court and the plaintiff, they also have to file the particulars of the LRs of the deceased defendants, despite knowing the fact the respondent has not taken any steps to bring Legal Representatives on record.

22. Admittedly, in this case, there is no record to show that the respondent/plaintiff was aware of the factum of the death of the second and third defendants and also the learned counsel for the defendants filed memo before the Court and also the particulars of the LRs were given. A copy of the decree filed in the typed set of papers would clearly show that it is not revealed that during pendency of the suit, death of the 2nd and 3rd defendants were brought on record of the Court. Though the learned counsel appearing for the petitioner would submit that since after the death of the third defendant, the respondent did not take any steps to bring the LRs of the deceased third defendant on records. The suit against the third defendant was dismissed as abated and subsequently, exparte decree was passed against 2nd defendant hence, there is no decree against the third defendant and the property is only in the name of the third defendant and therefore the decree is not executable.

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23. A careful reading of the decree does not reveal that the suit was dismissed against the third defendant and the ex parte decree was passed only against the second defendant. The decree simply reads as the defendants are directed to pay a sum of Rs.50,000/- to the plaintiff and also pay interest at the rate of 18% p.a from the date of filing of the suit till the date of the decree and after the date of decree till the date of realisation shall pay interest at the rate of 6% p.a. Even the judgement also reveals that defendants were called absent and set ex parte and the suit was decreed. The Trial Court held that the respondent/plaintiff was examined as P.W.1 and the documents filed by him were marked as Ex.A1 to A5 and the suit claim was proved and the suit is decreed. Therefore, on a combined reading of the decree and judgement no where it is stated that the suit was dismissed against the third defendant and the ex parte decree was passed only against the second defendant.

24. Per contra to the decree and judgement the petitioner has not filed any document to show that the suit was dismissed against the third defendant on her death and the Court holding that the suit against the third defendant was dismissed as abated and the ex parte decree was passed only against the second defendant. The property mentioned in the execution petition was only in the name of the third defendant and there was no decree against the 16/19

third defendant and therefore the execution proceedings is not maintainable against the said property. Though at the time of filing of the O.E.A No.364 of 2009, the petitioner was a minor so the counter in E.P.No.58 of 2009 was filed through the guardian one Mr.Sundaram and his wife was examined as P.W.1 and he has filed only three documents and they were marked as Exs.P1 to P3. The three documents pertains to the certified copies of the death certificates of the defendants 2 and 3 and the authorisation letter to examine P.W.1 in the Court. No other document was filed and proved the contention of the petitioner.

Neither the guardian of the petitioner nor the learned counsel for the defendants reported before the Court about the death of the defendants 2 and 3 nor brought it to the notice of the Court and sought a direction to the respondent/plaintiff to take steps to the bring the LRs on record. Further the petitioner has not proved that they have filed LR particulars and therefore non obtaining of exemption under Order XXII Rule 4(4) of C.P.C. is not sustainable under law. Now, it is to be noted that after receiving the E.P. notice, the petitioner has not filed any application to set aside the ex parte decree that they came to know about the decree only after the service of notice in the E.P. and the defendants died prior to the passing of decree.

LRs particulars before the trial Court and despite that, the trial Court passed an order and that the respondent has not taken any steps and the trial Court knows about the fact that the defendants were not alive and in spite of that it passed the decree against dead persons. Therefore, the contention of the learned counsel appearing for the petitioner is not sustainable as the same is not substantiated either by oral or documentary evidence. In these circumstances, this Court does not find any perversity in the order passed by the Execution Court and the revision is liable to be dismissed for devoid of merits.

25. In the result, the civil revision petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 07.08.2020 kk To

1. The Subordinate Judge, Cheyyar, Thiruvannamalai District.

2. The Principal District Munsif Cum J.M.I, Cheyyar, Thiruvannamalai District.

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P.VELMURUGAN, J.

kk and M.P.No.1 of 2011 07.08.2020 19/19