The main legal point established in the judgment is that when a suit abates against the principal debtor, it equally abates against the surety, and any decree passed against the surety in such circumstances is illegal and unenforceable.

1. The legality, propriety and validity of the order passed by the 9th Joint Civil Judge, Junior Division, Nagpur on 3rd September 2016 below application at Exhibit-12, in execution proceedings bearing R.D. no. 97/2013, is challenged in this revision. The impugned order was passed on the application filed by the judgment debtor no.3 i.e. original defendant no.3 in R.C.S. No. 1440/2001, for dismissal of the execution proceedings against him. Learned Executing Court rejected the said application and hence being aggrieved thereby, he has approached this court, invoking its revisional jurisdiction.

2. The legal issue involved in this revision application is whether a suit, initiated as a composite suit against the borrower and sureties, can be proceeded with and can the liability be fastened on the sureties alone, when the suit stands abated against the original borrower/principal debtor ?

Facts, which are relevant, for deciding this issue can be stated as follows:

3. On 24/05/2001, Regular Civil Suit No. 1440/2001 was filed by respondent No.1 the decree holder against the defendant no. 1 principal debtor and against defendant no.2 and 3 who were the sureties of defendant no.1, for recovery of the amount of the Chit Fund. In the said suit, though the defendant no.2 and 3 had appeared, they were proceeded without written statement.

4. In the course of the proceedings of the suit, it was pointed out to the court that defendant no.1 had died on 19.12.1999 itself. Purshis exhibit-12 was filed by the plaintiff stating that as defendant no.1 was unmarried, his name be deleted from the suit and order to that effect accordingly came to be passed. However, on the application of plaintiff, respondent No.3 herein the New India Assurance Company came to be joined as defendant No.4 on the count that defendant No.1 was working in the said company and hence the amount recoverable from Defendant No.1 be recovered from his service benefits and dues to be payable by New India Assurance Company. Defendant no.4 resisted the suit, contending interalia that it is not in any way concerned with the personal loan transaction of deceased Defendant No.1 and the salary and terminal benefits or even the pension and gratuity of the deceased cannot be liable for attachment. It was specifically contended that Defendant No.4 cannot be held liable in any way for payment of the amount and suit be dismissed against it.

5. On the basis of these pleadings, the trial court framed the necessary issues and one of the issue was, “whether plaintiff proved that defendant no.1 was having no legal heirs at the time of his death on 19.12.1999?”. The Trial Court answered the said issue in the affirmative, holding that the defendant no.1, as per the pursis filed on the record by the plaintiff at Exh. 12, has died unmarried leaving behind no legal heirs. The trial Court therefore held that as the name of the defendant no.1 is deleted and the suit is abated against him, the decree can be passed against the defendant no. 2 to 4 alone. Accordingly, the trial Court, vide the judgment and order dated 2nd January 2012 decreed the suit and directed the defendant no. 2 to 4 to pay the Chit Fund installments amounting of Rs. 71,500/- to the plaintiff company jointly and severally, alongwith the interest thereon from the date of filing of suit till its realisation.

6. When this decree was put for execution, the original defendant no. 3, who was a judgment debtor in the execution proceeding, raised objection to the execution of the decree itself on the ground that the decree is void and unexecutable. It was contended that defendant no.1 the principal debtor had died before filing of the suit itself. It was submitted that though plaintiff had that defendant no.1 had died without leaving any legal heirs behind, the application filed by the plaintiff at Exhibit-15 and the Written statement filed by defendant no.4 clearly showed that defendant no.1 had died leaving behind some legal heirs t