A final decree in a suit for partition in its entirety is a nullity if one of the respondents died during the pendency of the final decree proceedings.

V. NEELADRI RAO, J.

( 1 ) THE petitioner in I. A. No. 1281 of 1986 in I. A. No. 1144 of 1983 in O. S. No. 190 of 1971, Principal Sub-Court, Tirupati is the revision petitioner, R-2 herein filed o. S. No. 37 of 1970, Sub-Court, Chittoor (re-numbered as O. S. NO. 190of 1971, on the file of the Principal Sub-Court, Tirupati) for partition of the plaint schedule property into four equal shares and for allotment of one such share to her and for separate possession of the same. She alleged that her two brothers and her deceased sister Kuppamma are the heirs of their mother Laxmakka who owned the plaint schedule property. Her plea was accepted and preliminary decree was passed declaring that plaintiff and her brothers are entitled to l/4th share each and D-3 to D-5, the children of her deceased sister are entitled to the remaining 1/4th share. It was confirmed in the appeal. In 1983, i. e. , after the passing of the preliminary decree, D-3 died. Without bringing the L. Rs. of D-3 on record, I. A. No. 1144 of 1983 was filed for passing of the final decree. On 25-4-1986, the final decree was passed. I. A. No. 1281 of 1986 was filed by the revision petitioner by contending inter alia that the final decree is void as one of the sharers died by the time the final decree was passed and as his L. Rs. were not brought on record.

( 2 ) WHILE it is contended for the petitioner that the final decree dated 25-4-1986 is a nullity as one of the respondents was a dead person by the date of the final decree, it was urged for the respondents that the decree is only voidable which is liable to be set aside at the instance of the L. Rs. ofd-3and the said decree is not void. The lower Court upheld the contention of the latter and dismissed the application. The same is attacked in this revision petition.

( 3 ) IT is well-established proposition of law that a suit cannot be dismissed on ground of abatement after a preliminary decree was passed for thereby rights are accrued to one party and liabilities are incurred by the other: vide Lachiminarayan vs. Balmadund. It was observed therein" After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. "after a decree, any party can apply to have it enforced. As such, the suit does not abate under Or. 22 Rules 1,3 or 4 C. P. C. after a preliminary decree is passed. But, it is equally a general principle of law that a decree cannot be passed in favour of or against a dead person. It is enough to refer to the two judgments of our High Court which lend support to the same: Venkata Ram Rao vs. Narayana and Madhava Rao vs. Basavayya. In venkata Ram Rao s Case (2 supra), the point that had arisen for consideration before the Full Bench was as to whether the surviving appellant can invoke Or. 41 Rule 4 CPC, when steps were not taken for bringing the L. Rs. of the deceased appellants on record in accordance with Or. 22 R. 3 r/w Or. 22 R. 11 CPC. While adverting to the said question, it was observed in para 8 of the judgment:". . . . . . . . . . . . . . . . . . . . . . . . . In determining this controversy, the very first principle that should be kept in mind is that a Court can pass no decree for or against a dead person, unless the law otherwise provides, such as for instance, or. 22 R. 6, where it is provided that if either of the party dies between the conclusion of the hearing and the pronouncing of the judgment, whether the cause of action survives or not and notwithstanding anything contained in any rules specified therein, a judgment can be pronounced and shall have the same force and effect as if it had been pronounced before the death took place. "in Madhava Rao s Case (3 supra), a suit for dissolution of partnership firm and settlement of accounts was dismissed and a preliminary decree was passed for dissol

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