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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J.
Pachakat Khadeeshommabi And Ors. – Appellants
Versus
Kadeejommabi And Ors. – Respondents
RSA.No.592 OF 2020
Decided On : 25-02-2021
Decree against Dead Person - Effect of Decree against Dead Person - Order XXII of CPC - Nullity of Decree - Remedy of Legal Heirs - [Order XXII of CPC, Article 120 of Limitation Act, 1963, O.XXII R3(1) CPC, O.XXII R. 9, O.XXII R.4(5) CPC, O.XXII R.6] - The court discussed the effect of a decree against a dead person and the remedy available to a person aggrieved by such a decree. It highlighted the nullity of a decree obtained against a dead person and the statutory provisions dealing with the death of a party to the suit. The court emphasized the procedure to be adopted, depending on whether the decree is against a dead person or in favor of a dead person, and the remedies available to the legal representatives in such situations.
Fact of the Case:
The sole plaintiff filed a suit, but died before the decree was passed. The legal heirs were not impleaded, and the court proceeded to decree the suit. The appellate court held the decree to be a nullity but dismissed the appeal, directing the legal heirs to seek recall of the decree after filing a petition to implead in the trial court. The second appeal challenged this judgment.
Finding of the Court:
The trial court's decree was a nullity due to the death of the sole plaintiff, and the remedy of the legal representatives was to implead and, if the suit had abated, to get the abatement set aside and then obtain a judgment on merits. The appellate court's direction to recall the decree was unnecessary and redundant in law.
Issues: The main issues were whether the trial court's decree against a dead person was a nullity, the correctness of the appellate court's dismissal of the appeal, and the necessity of impleading legal heirs when the suit had abated.
Ratio Decidendi: The court held that a decree obtained against a dead person is a nullity and discussed the statutory provisions dealing with the death of a party to the suit. It emphasized the procedure to be adopted, depending on whether the decree is against a dead person or in favor of a dead person, and the remedies available to the legal representatives in such situations.
Final Decision: The second appeal was allowed, and the judgment of the District Court was set aside to the extent it dismissed the appeal and directed filing of an application to recall the decree. The trial court was directed to dispose of the applications, if any, within a period of three months.
JUDGMENT :
The effect of a decree against a dead person and the remedy available to a person aggrieved by such a decree arises for consideration in this second appeal. This appeal was admitted on a substantial question of law as to whether the learned District Judge was correct in dismissing the appeal and remanding the suit giving liberty to the parties to implead the legal heirs of the sole plaintiff without setting aside the decree?
2. The short facts necessary for the disposal of this appeal are as follows:
3. As mentioned above, while dismissing the appeal the appellate court observed that the decree is a nullity since it was against a dead person and also that the remedy of the legal heirs of the deceased sole plaintiff was to file an application to recall the decree. Reliance was placed upon the decision in, Uma Antherjanam vs Neelakanta Namboothiri (2001 KHC 554). It was further observed that, if an application for impleadment is filed, the same shall be disposed of within a time limit. The suit was also directed to be disposed of in a time-bound manner.
4. The learned Senior counsel Sri.T.Sethumadhavan instructed by Adv. P.V. Preethi submitted that the second appeal is filed mainly for three reasons. They are (i) once a decree is found to be a nullity, there was no necessity for recalling the said decree, (ii) the dismissal of the appeal was incorrect as it amounts to confirmation of the trial court decree and (iii) impleadment of legal heirs cannot be automatic as the suit had abated. The learned Senior counsel also submitted that the directions by the Appellate Court indicates a positive direction to implead the legal heirs which prejudices the rights of the appellants.
5. The learned counsel Sri.V.V Surendran appearing on behalf of the legal heirs of the sole plaintiff, on the other hand, while admitting the death of the sole plaintiff submitted that the contentions of the defendants are highly technical and also that pursuant to the impugned judgment of the First Appellate Court, the legal heirs had filed applications to recall the decree and to implead the legal heirs before the trial court. He thus sought for dismissal of this appeal.
6. The principle that a decree in favour of a dead person is a nullity needs no reiteration. It was observed by the Privy Counsel in the decision, Radha Prasad Singh vs Lal Sahib Rai ILR (1891) 13 All 53 (PC), and also in Debi Bakhsh Singh vs Habib Shah (1913) ILR 35 331 (PC), that a decree obtained against a person or a decree passed in favour of a dead person, is a nullity.
7. A reference to the statutory provisions dealing with death of a party to the suit may be apposite in this context. Order XXII of the Code of Civil Procedure, 1908 (for short 'the CPC') deals with the procedure on the death of parties to a suit. If the right to sue survives after the death of any of the parties to a suit, the suit shall not abate, provided, the legal representatives are brought on record within the time allo
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