A decree passed against a dead person is a nullity and cannot be executed against the legal representatives.

ORDER:-Respondent herein filed O.S. No. 970 of 1989 against one Vincent for recovery of certain amount due on a promissory note. The suit was filed in April 1989. Summons was served on the defendant on 22-5-1989. The defendant did not enter appearance in the suit. He died on 16-8-1989. The suit was decreed ex parte on 1-9-1989. The respondent herein filed a petition on 20-9-1989 for execution of the decree. In the execution petition, the petitioners herein were shown as respondents as the legal representatives of the deceased defendant. As soon as the notice in the execution petition was served on the petitioners, they filed an application under S. 47 of the Civil Procedure Code in E.A. No. 1732 of 1989 for dismissing the execution petition on the ground that the decree dated 1-9-1989 was null and void, and it was passed against a dead person. The executing Court has dismissed the application taking the view that the provisions of Order 22 Rule 4, CPC could be applied to the case. Aggrieved by the said dismissal, the present revision petition has been filed.

2. Order 22 Rule 4, CPC reads thus :

"(1) Where one of two or more defendants dies and the rights to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to this character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant,

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it,

has failed to appear and contest the suit at the hearing, and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where -

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963, and the suit has, in consequence, abated, and,

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application under S. 5 of the Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under S. 5, have due regard to the fact of such ignorance, if proved."

3. It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub-rule (3). Sub-rule (4) provides an exception to sub-rule (3). Under sub-rule (4), it is open to the Court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the Court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one.