Wilson Nadar, v. Divakaran Pillai(Died)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.10.2018 CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN CRP (MD) No.1042 of 2018 (NPD) and CMP(MD) No.4488 of 2018 1.Wilson Nadar Sumathy (died) 2.Latha Kumari 3.Sudha 4.Subha 5.Suni 6.Saraswathy 7.Jeyasekhar 8.Jaya 9.Jayaraj 10.Jayanthi
...Petitioners
Vs.
Divakaran Pillai (died) Rudramma (died) Kathikeyan (died) 1.Vikraman 2.Anithakumari 3.Ramani Padmakshy Amma (died) Palayyan Nadar (died) Rajappan Nadar (died) 4.Muthayyan Nadar 5.Palayyan Nadar 6.Nadachi 7.Jeyasingh ... Respondents
Prayer: Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, to set aside the order and decreetal order dated 12.10.2017 of the learned Principal District Munsif, Kuzhithurai made in E.P No.3 of 1995 in O.S No.66 of 1976 on his file, dismissing the said E.P.
For Petitioner : Mr.K.N.Thambi For Respondents : Mr.C.Godwin for R3 R1, R2, R4 & R5 - No appearance R6 - expired, R7 - Tapal returned.
R7-NA (Pvt. Notice Sended)
ORDER
One Divakaran Pillai filed O.S No.66 of 1976 on the file of the Additional District Munsif Court, Kuzhithurai seeking the relief of redemption of mortgage.
Preliminary decree was passed on 27.03.1991. I.A No.142 of 1992 was filed by him and the final decree was also passed on 26.08.1994. To enforce the same, E.P No.3 of 1995 was filed. In the said E.P, the revision petitioners herein came on record as the legal representatives of the original third defendant. The executing court allowed the E.P by order dated 12.10.2017. The correctness of the said order is questioned in this civil revision petition.
2.Heard the learned counsel for the revision petitioners and the learned counsel appearing for the contesting respondent. 3.The learned counsel appearing for the revision petitioners would point out that the third defendant Rajappan passed away on 03.02.1992. Thus, the final decree was passed against a dead person. Any decree passed against a dead person is a nullity. It is therefore inexecutable. Since this aspect was not taken note of by the executing court, the order impugned in this civil revision petition is liable to be set aside.
4.I am unable to agree with the said submission. As rightly contended by the learned counsel appearing for the contesting respondent, the suit was one for redemption of mortgage. Preliminary decree was passed as early as on 27.03.1991. The preliminary decree has not been challenged and it has become final. It is not the case of the revision petitioners that the final decree is not in tune with the preliminary decree.
5.The learned counsel appearing for the revision petitioners would claim that they are entitled to the value of the improvements made by them. But then, the preliminary decree does not provide for the same. That apart, the third defendant as the son of Perumal Nadar had contested the preliminary decree proceedings in unison with his brothers. Therefore, it is not a case in which this Court should adopt a technical view and interfere with the order passed by the court below.
6.I find no merit in this civil revision petition. It stands dismissed. No costs. The counsel for the contesting respondent contended that during the intervening period, the property has since been delivered to them and that delivery has also been recorded and therefore, nothing survives adjudication in this civil revision petition. Consequently, connected miscellaneous petition is also dismissed.
Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar(I) To The Principal District Munsif, Kuzhithurai.
+2 CCs TO Mr.Mr.K.N.Thambi , ADVOCATE IN SR No. 88216,88653. + 1 CC TO Mr.C.Godwin , ADVOCATE IN SR No. 88019. SKM DS SKN SAR-3 24 10 2018 3P 5C CRP (MD) No.1042 of 2018 (NPD) and CMP(MD) No.4488 of 2018 01.10.2018