Order passed in a suit filed against a dead person is nullity.

The plaintiff in O.S. 650/ 81 on the file of the District Munsif, Valangaiman at Kumbakonam is the petitioner in both the revisions. The defendants in the said suit are the respondents. The plaintiff filed the suit for partition to divide the property into two halves and allot one such share to him. The first defendant is entitled to other half share. The defendants 2 to 4 are the tenants. The other respondents are the legal representatives of the first defendant.

2. During the pendency of the suit I.A. 1546/ 84 was filed by the sixth respondent herein to appoint a court guardian for the first defendant. After medical evidence, the lower Court by order dt. 19-6-85 allowed the application for appointment of a guardian to the first defendant. The plaintiff has failed to take steps for the appointment of guardian for the first defendant. The Court below had passed an ex parte preliminary decree on 3-7-85.

3. Thereafter the petitioner herein filed I.A. 883/88 to bring the legal representatives of the deceased first defendant on record and I.A. 884/ 88 to pass a final decree pursuant to the preliminary decree dt. 3-7-85. The Court below had dismissed both the applications on the ground that since the application for appointment of guardian for the first defendant had been allowed and the suit had been disposed of without appointing the guardian, the preliminary decree itself is nullity and no further proceedings can be continued. The petitioner has filed both these revisions against the orders in I.A. 883 and 884 of 1988.

4. The counsel for the petitioner contended that the application for appointment of guardian had been allowed by the trial Court. Both the petitioner as well as the respondents have failed to take steps to appoint the guardian for the first defendant and that the lower Court ought not to have proceeded with the trial without appointing the guardian. Ultimately the mistake had been committed by both the parties as well as the Court. Hence now the ex parte decree dt. 3-7-85 may be set aside and the trial Court may be directed to proceed with the suit from where it was left. Now that the first defendant is no more and the legal representatives have been brought on record, the legal representatives can proceed with the suit. The further contention of the Counsel for the petitioner is that the suit has been filed against the first defendant and had been proceeded further without appointing a guardian in spite of the order of the Court and now that the legal representatives are available, they will not be prejudiced in any manner by the continuation of the suit from the stage of the order of the appointment of guardian for the first defendant.

5. The learned senior Counsel for the respondents contended that once it is found that the first defendant is of unsound mind and is not able to take care of herself and a guardian has been directed to be appointed, the failure on the part of the petitioner to take steps to appoint a guardian and allowed the suit to be decreed ex parte, makes the decree a nullity. As the decree itself is a nullity, the lower Court has rightly dismissed both the applications to bring the legal representatives on record and to pass a final decree pursuant to the preliminary decree. If at all the petitioner wants, he can file a fresh suit for partition, as there is no limitation for the same.

6. The only question to be considered in these revisions is whether the preliminary decree can be set aside and the suit can be directed to be proceeded with or to confirm the order of the lower Court and direct the petitioner to file a fresh suit.

7. The undisputed facts are : The plaintiff filed the suit for partition. In I.A. 1546/84 by order dt.19-6-85, the lower Court declared that the first defendant cannot look after herself and directed a guardian to be appointed.

The plaintiff never took steps for the appointment of guardian as per the above said order. When the suit was posted for ex parte evidenc