1. Revision against show-cause notice in execution of ex parte money decree under hire purchase agreement. (Para 1 , 2 )
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2025 Supreme(AP) 1437
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
B. S. Bhanumathi, J.
Smt. V.Venkata Lakshmi – Petitioner
Versus
M/s. Srinivasa Finance Corporation and others – Respondent
Civil Revision Petition No.2303 of 2025
Decided On : 18-12-2025
Important Points
Challenges to the executability of a decree on the ground that it is a nullity (e.g., due to the death of a party without proper legal substitution) must be agitated before the executing court under Section 47 of the Code of Civil Procedure.
Subject
Civil Law - Execution Proceedings
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Order XXII, Rule 4(4) - Exemption from substituting legal representatives - Where a defendant has failed to file a written statement or failed to appear and contest the suit, the Court may exempt the plaintiff from the necessity of substituting the legal representatives; however, such exemption must be granted before the judgment is pronounced for the decree to have the same force as if it were pronounced before the death (Paras 8 and 10).
(B) Code of Civil Procedure, 1908 - Section 47 - Executability of Decree - The question of whether a decree is a nullity or is non est, particularly on grounds such as the death of a party without bringing legal representatives on record, can be decided by the executing court under Section 47 (Para 11).
(C) Code of Civil Procedure, 1908 - Order XXII, Rule 10A - Duty of pleader - The obligation to inform the Court about the death of a party rests upon the pleader appearing for said party; if the defendant did not appear through an advocate, such obligation does not arise (Para 9).
Facts of the case:
A suit for recovery of money under a hire-purchase agreement was filed against a principal borrower and a guarantor. Both defendants remained ex parte, and a decree was passed. During execution proceedings, the salary of the guarantor was attached. The guarantor challenged the execution, contending that the decree was a nullity because the principal borrower had died during the pendency of the suit and his legal representatives were not impleaded. It was argued that the decree against the guarantor is not executable if the decree against the principal borrower is non est.
Findings of Court:
The Court observed that the petitioner had not raised the grounds regarding the nullity of the decree before the execution court. Since execution proceedings are separate from trial side proceedings (including applications under Order IX, Rule 13), the execution court was not previously given the opportunity to decide on the executability of the decree based on these specific grounds.
Issues: Whether the challenge to the validity of an ex parte decree on the ground that the principal borrower died before the judgment without substitution of legal representatives should be agitated before the executing court under Section 47 of the C.P.C.
Ratio Decidendi: The court ruled that the issue of whether a decree is a nullity due to the death of a defendant and failure to implead legal representatives—and whether the guarantor can be independently held liable—is a matter to be decided by the execution court under Section 47 of the C.P.C. The revision petitioner was granted liberty to raise these grounds before the execution court.
Result: Revision petition disposed of giving liberty to the petitioner to raise the grounds before the execution court.
(B) Code of Civil Procedure, 1908 - Section 47 - Executability of Decree - The question of whether a decree is a nullity or is non est, particularly on grounds such as the death of a party without bringing legal representatives on record, can be decided by the executing court under Section 47 (Para 11).
(C) Code of Civil Procedure, 1908 - Order XXII, Rule 10A - Duty of pleader - The obligation to inform the Court about the death of a party rests upon the pleader appearing for said party; if the defendant did not appear through an advocate, such obligation does not arise (Para 9).
Facts of the case:
A suit for recovery of money under a hire-purchase agreement was filed against a principal borrower and a guarantor. Both defendants remained ex parte, and a decree was passed. During execution proceedings, the salary of the guarantor was attached. The guarantor challenged the execution, contending that the decree was a nullity because the principal borrower had died during the pendency of the suit and his legal representatives were not impleaded. It was argued that the decree against the guarantor is not executable if the decree against the principal borrower is non est.
Findings of Court:
The Court observed that the petitioner had not raised the grounds regarding the nullity of the decree before the execution court. Since execution proceedings are separate from trial side proceedings (including applications under Order IX, Rule 13), the execution court was not previously given the opportunity to decide on the executability of the decree based on these specific grounds.
Issues: Whether the challenge to the validity of an ex parte decree on the ground that the principal borrower died before the judgment without substitution of legal representatives should be agitated before the executing court under Section 47 of the C.P.C.
Ratio Decidendi: The court ruled that the issue of whether a decree is a nullity due to the death of a defendant and failure to implead legal representatives—and whether the guarantor can be independently held liable—is a matter to be decided by the execution court under Section 47 of the C.P.C. The revision petitioner was granted liberty to raise these grounds before the execution court.
Result: Revision petition disposed of giving liberty to the petitioner to raise the grounds before the execution court.
Legal Category Hierarchy
- practice and procedure
-
contract law
-
guarantee
- liability of guarantor (Para 11)
- hire purchase
-
guarantee
Advocates Appeared:
For the Petitioner: B. Chinnapa Reddy
For the Respondent: G.Sravan Kumar
For the Petitioner: B. Chinnapa Reddy
For the Respondent: G.Sravan Kumar
Table of Contents
2. Decree non est due to death of principal debtor before decree; decree against guarantor not executable. (Para 4 )
3. Execution Court did not consider nullity ground; revision petitioner must first raise it before execution Court. (Para 11 )
4. Executing Court can decide executability on nullity ground under Section 47 CPC, including decree against dead person. (Para 8 , 10 , 11 )
5. Revision disposed with liberty to raise executability grounds before execution Court, which shall decide within one month. (Para 12 )
6. Can a decree passed against a dead defendant be challenged in execution proceedings?
Yes, the executability of a decree on the ground of nullity, including a decree passed against a dead person, can be decided under Section 47 CPC. (Para 8 , 10 , 11 )
7. What is the effect of non-compliance with Order XXII Rule 4(4) CPC in passing a decree?
Where a defendant dies before judgment and no exemption from substituting legal representatives is obtained before pronouncement of judgment, the decree is a nullity. (Para 8 , 10 )
8. Can grounds challenging the validity of a decree be raised for the first time in execution?
Yes, the executing court can entertain an objection that the decree is a nullity if the objection appears on the face of the record or involves lack of inherent jurisdiction. (Para 8 )
9. What is the duty of a pleader regarding knowledge of a party's death under CPC?
Order XXII Rule 10-A CPC imposes a duty on a pleader appearing for a party to inform the court upon learning of that party's death. (Para 9 )
ORDER :
B. S. Bhanumathi, J.
This revision is filed by the defendant No.2 under Section 115 C.P.C. against the show-cause notice, dated 20.09.2024, issued in pursuance of the order, dated 24.08.2022, in E.P.No.127 of 2021 in O.S.No.457 of 2017 on the file of the Court of the Additional Civil Judge (Senior Division), Kurnool.
2. The revision petitioner herein is the defendant No.2. The respondent No.1 is the plaintiff. The respondent No.2 / defendant No.1 died.
3. The facts that lead to filing of this revision petition, briefly stated, are as follows:
a. The plaintiff brought the suit against the defendants Nos.1 and 2 for recovery of an amount of Rs.10,81,000/-, being the amount due under the hire purchase agreement, dated 25.05.2015, with subsequent interest and costs. The defendants Nos.1 & 2 remained ex parte. On behalf of the plaintiff firm, the Managing Partner of the plaintiff was examined as P.W.1 and exhibits A1 to A10 were marked. Ex.A1 is the attested copy of acknowledgment of the plaintiff firm bearing registration No.4401 of 1991, dated 27.05.1991, Ex.A2 is the attested copy of partnership deed, dated 24.05.2002, Ex.A3 is the attested copy of Form-A of the plaintiff firm, dated 27.05.1991, Ex.A4 is the original proposal form-cum-Hire Purchase Agreement, dated 25.05.2015, Ex.A5 is the original Hire Purchase Agreement, dated 25.05.2015, Ex.A6 is the original installment details, dated 25.05.2015, Ex.A7 is the computer copy of statement of dues, dated 03.10.2017, Ex.A8 is the office copy of demand notice, dated 01.06.2017, Ex.A9 is the original returned postal cover, dated 13.06.2017 and Ex.A10 is the original returned postal cover, dated 06.06.2017.
b. After hearing the plaintiff, the trial Court held that the plaintiff firm proved that the defendant No.1 had executed Ex.A5, hire purchase agreement and the defendant No.2 stood as guarantor in favour of the plaintiff firm and failed to pay the same in spite of demands under Ex.A8 which was refused by the defendants under Exs.A9 and A10, returned postal covers. The trial Court further held that the suit claim of the plaintiff stood proved and the plaintiff is entitled to recover the suit claim as prayed for from the defendants. The operative portion of the judgment, dated 19.10.2020, reads as follows:
“In the result, the suit is decreed with costs, directing the defendants jointly and severally to pay a sum of Rs.10,81,000/- to the plaintiff, together with subsequent interest at 12% p.a., from the date of presentation of the suit till the date of decree and with future interest at the rate of 6% p.a., from the date of decree till the date of realization, on the principle amount of Rs.6,43,200/-.”
c. Thereafter, the petitioner / defendant No.2 filed I.A.No.318 of 2024 under Section 5 of the Limitation Act to condone delay of 1171 days in filing petition under Order IX, Rule 13 C.P.C. and I.A.No.319 of 2024 under Order IX, Rule 13 C.P.C to set aside the ex parte decree, dated 19.10.2020, stating as follows:
“The respondent / plaintiff filed the suit against me and deceased defendant No.1 for recovery of money with false and created documents. Previously, defendant No.1 borrowed amounts from plaintiff as loan and he cleared said debts. She was set ex parte on 16.08.2018. Because she was intimated regarding the summons to defendant No.1, as he stated that he had cleared debts and that he would look after the matter after receipt of summons in his name, she could not appear before the Court on 16.08.2018.”
Thus, she prayed to set aside the ex parte decree, dated 19.10.2020.
d. In I.A.No.318 of 2024, no counter was filed. The petition was allowed on 17.12.2024. However, counter was filed by the respondent No.1 / plaintiff in I.A.No.319 of 2024 with the following averments:
The petitioner remained ex parte and the decree is passed against them on 19.10.2020. After obtaining the decree, the respondent filed E.P.No.127 of 2021 for recovery of the E.P. amount of Rs.13,83,343/- and the E.P.
