1. A desperate bid by the wife and children of a ‘missing’ man to salvage their residential house from being proceeded against in execution of a decree for money.

2. The allegation is that the defendant was an employee of the plaintiff firm and had misappropriated money while in service. The suit was filed for realization of a sum of Rs.1,60,980/- with interest on the further allegation that the cheque later issued by the defendant was dishonoured. Crime No.263/1997 on the file of the Kasaba Police Station was registered for the alleged defalcation of money. It is conceded that the defendant who is the accused in the case is absconding and the criminal case remains long pending. The defendant reportedly did not return home from office on 16.09.1997 and the search for the missing person by his friends and relatives did not yield any result.

3. The whereabouts of the defendant had not been known since 16.09.1997 according to his wife and children who are the revision petitioners herein. It was their specific case that two complaints were given to the police on 17.09.1997 and on 07.09.1999 about the defendant missing. The defendant could not therefore enter appearance in the suit either personally or through counsel. An ex-parte decree for realization of money was eventually passed against the defendant on 23.03.2001 which was put into execution.

4. The wife and children waited for seven long years to call in aid the provisions of Section 107 and 108 of the Indian Evidence Act, 1872 (the ‘Act’ for short). A presumption as regards the civil death of the defendant could be drawn as his wife and children had not heard from him. The period of seven years expired on 15.09.2004 and applications were filed in the suit 14.10.2004 I.A.No.4192/2004 was filed for the purpose of impleading and I.A.No.4193/2004 was filed to set aside the ex-parte decree. Both the applications were dismissed by a common order and are the subject matter of C.R.P. Nos.188/2004 and 517/2008. The latter case had been filed as a civil miscellaneous appeal in the lower appellate court and withdrawn to this court for disposal.

5. The house of the defendant had in the meanwhile been attached in execution and brought to sale which was bid in auction by a stranger purchaser. E.A. No.284/2004 in E.P.No.398/2002 filed to set aside the sale was dismissed and affirmed in appeal by the lower appellate court. The same is also challenged in C.R.P.No.104/2005 by the wife and children of the defendant. The auction sale had however not been confirmed or delivery effected in view of the interim orders in the Civil Revision Petitioners.

6. I heard Ms. N. Sudha, Advocate on behalf of the revision petitioners Mr. K. Lakshminarayan, Advocate on behalf of the decree holder and Mr. T. Madhu, Advocate on behalf of the auction purchaser.

7. Sections 107 and 108 of the Act read as follows:

107. Burden of proving death of person known to have been alive within thirty years – When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for seven years – Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

The wife and children of the defendant could not have moved the court below earlier since the period of seven years after the defendant was found missing expired on 15.09.2004 only. The application for impleading under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC for short) was filed on 14.10.2004 itself. Similarly the application to set aside the ex-parte decree under Section 46 read with Order IX Rule 13 of the CPC was also filed on 14.10.2004. The applicatio