IMPORTANT POINT
A decree obtained against a dead person is a nullity and cannot be enforced, as per Section 151 of the Civil Procedure Code and established legal precedent.

ORDER :

1. Aggrieved by the order dated 23.05.2023 passed on I.A. No. 2 in Execution Case No. 1335/2021 by the XI Additional City Civil and Sessions Judge, Bengaluru City, the objector therein has preferred this Civil Revision petition.

2. The Decree Holder filed O.S. No. 4659/2014 on 23.06.2014 against the Judgment Debtor for the relief of specific performance in respect of the suit schedule properties. The cause-title of the original suit reads as under:

IN THE COURT OF CITY CIVIL JUDGE, AT BANGALORE

O.S. NO. 4659/2014

BETWEEN:

SHRI H.V. NAGARAJ

S/o Shri Veeranna,

Aged about 45 years,

R/at No. 3678, 6th Cross,

Subramanya Nagar, 2nd Stage, Bangalore - PLAINTIFF

SHRI H. VASUDEV

Shri S/o Hombanna,

Aged about 31 years,

R/at. Malathahalli Village,

Yeshwanthpur Hobli,

Bangalore North Taluk, Bangalore.

Rep. by his G.P.A. Holder

SHRI JINENDRA PRASAD

S/o Shri Thrilokchand,

Aged about 56 years,

R/at. No. 252, Kothanur Post,

Hennur Main Road,

Bangalore-560077 - DEFENDANT

3. The pleadings in the original suit reveal that defendant had executed a General Power of Attorney in favour of his Power of Attorney Holder for a consideration and that the plaintiff had entered into an agreement of sale in respect of the suit schedule properties with the defendant as well as his General Power of Attorney Holder and had paid the entire sale consideration in favour of the General Power of Attorney Holder. However, while filing O.S. No. 4659/2014, the plaintiff has made the defendant represented by his General Power of Attorney Holder alone a party to the suit and he has not made his General Power of Attorney Holder a party to the suit separately as another defendant. Hence, irrespective of the pleadings made in the body of the plaint, the suit has to be considered as one filed by the plaintiff against the defendant.

4. After filing of the suit, the General Power of Attorney Holder on behalf of the defendant has appeared before the Court and conducted the case on behalf of the defendant and also has compromised the suit on behalf of the defendant with the plaintiff and the suit has been decreed as per the terms of the compromise, which requires the defendant to execute the sale deed in respect of the suit schedule properties in favour of the plaintiff. What is to be noted here is, that the suit was contested by the General Power of Attorney Holder on behalf of the defendant alone and not in his personal capacity and he as an agent of the defendant has entered into a compromise on behalf of the defendant. The fact of General Power of Attorney having been given to a General Power of Attorney Holder by the defendant for a consideration and making it irrevocable and continuing even after the death of defendant has not been pleaded and established.

5. The suit was decreed on 22.11.2014.

6. It is now brought to the notice of this Court by both the parties concerned that the defendant had died long back on 07.03.2011, much prior to filing of the suit which was on 23.06.2014.

7. As the proceedings in the suit has to be considered as a dispute between the plaintiff and the defendant and not a case between the plaintiff and the General Power of Attorney Holder of the defendant, the decree passed has to be considered as a decree passed against the defendant. As mentioned above, the suit was instituted against a dead person and the decree has been passed against a dead person and under the circumstances, the said decree has to be considered a nullity.

8. A decree which is considered as a nullity, cannot be executed. The plaintiff/Decree Holder/respondent herein filed Execution Case No. 1335/2021 to have the decree executed. In the said proceedings, the petitioner herein impleaded himself as an Objector and apart from taking up a contention that he is the owner of the suit schedule properties, also filed an application under Section 151 of CPC to dismiss the execution case on the ground that the decree was obtained against the dead person. The trial Court has rejected the said application, ag