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IN THE CIRCUIT BENCH CALCUTTA HIGH COURT AT JALPAIGURI
SUBHENDU SAMANTA
Prabha Ajay Agarwal – Appellant
Versus
Ram Kishan Mittal – Respondent
JUDGMENT :
Subhendu Samanta, J.
1. A very short legal point is involved in the instant revision- as to whether order passed ex-parte against a dead person, which was sought to be set aside by the legal heirs of the dead person under Order 9, Rule 13 CPC can be rejected.
2. One Banshidhari Agarwal inducted present OP No. 2 as a tenant in the premises in question. OP No. 2 occupied the premises along with her relatives Banshidhari Agarwal instituted a suit for ejectment and consequential prayers before the learned Civil Judge, (junior Division) Darjeeling being OC Suit No. 15 of 1997. The suit was contested by the OP No. 2. During pendency of the said suit Banshidhari Agarwal expired his legal heirs gifted the suit premises in favour of one Ajay Kr. Agarwal. The suit was decreed. Ajay Kr. Agarwal initiated an execution proceeding. Present OP No. 1 (one relative of OP 2) filed a suit being OC suit No. 3 of 2013 before the learned civil Judge (Senior Division) at Kalimpong State. OC Suit No. 3 of 2013 was dismissed as not maintainable.
3. OP No. 1 filed an application under Order 21 Rule 99/100/101 of the Code of Civil Procedure 1908, before the Learned Civil Judge (Senior Division) Kalimp
A decree issued against a deceased party is unenforceable if an exemption under Order XXII Rule 4 is not obtained prior to judgment; it represents an irregularity rather than an absolute nullity.
The legal principle established is that a suit filed against a deceased defendant is not maintainable, and the court may permit the withdrawal of the suit with liberty to file a properly constituted ....
A decree passed in favor of a dead person is not a nullity and can be executed by the legal representatives of the deceased claimant.
Heirs of deceased defendants can contest ex parte decrees, emphasizing the necessity for proper notification and substitution under procedural rules.
Orders passed against deceased parties are nullities and require legal representation for validity.
A decree passed against a deceased party is null and void; proper procedure under Order 22 CPC must be followed to avoid automatic abatement.
Non-executability of decree – If decree is not nullity, executing court is required to execute such decree unless it has been set aside by a competent court in an appropriate proceeding.
Any decree passed in favor of or against a dead person is a nullity. Unregistered sale agreements are void under Section 17(1)(g) of A.P. Amendment Act 4 of 1999. Compliance with procedural requireme....
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