A decree passed against a deceased party is void without the legal heirs being impleaded, preventing execution against them until their interests are represented.

ORDER :

R.Vijayakumar, J.

The legal heirs of the 5^th defendant in O.S.No.72 of 1984 on the file of the District Munsif Court, Aranthangi have filed the present civil revision petition challenging the order of delivery passed by the Executing Court in E.P.No.48 of 2010.

(A) Factual Backgrounds:

2. The ancestors in title of the respondents 1 to 5 herein had filed the above said suit for the relief of partition and separate possession.

3. A preliminary decree came to be passed on 13.04.1994. The legal heirs of the plaintiff had filed I.A.No.105 of 1998 for passing of final decree and a final decree came to be passed on 22.12.2003. Based upon the said final decree, the legal heirs of the plaintiff have filed E.P.No.48 of 2010 seeking delivery of the property allotted to them in the final decree. Under the impugned order, the Executing Court has allowed the delivery application. Challenging the same, the present civil revision petition has been filed by the legal heirs of the 5^th defendant.

(B). Submissions of the counsels appearing on either side:

4. The learned counsel appearing for the revision petitioner herein has challenged the executability of the final decree passed in the partition suit on the following grounds:

a) Two of the brothers of the original plaintiff were working as a Village Headmen and due to misappropriation of funds, their shares in the joint family property was brought to auction. In the sale conducted by the Government, the 5^th defendant has purchased 3.75 acres. Out of the said extent, an extent of 85 cents was acquired for formation of road. Balance 2.90 acres is in possession and enjoyment of the 5^th defendant. Therefore, the 5^th defendant is a necessary party to the suit for partition.

b) The 5^th defendant had passed away on 26.06.1988.The plaintiff and the 5^th defendant also hail from the same village and therefore, the death of the 5^th defendant was within the knowledge of the plaintiff. Initially, the suit was dismissed for default on 08.10.1990 and it was restored as per order in I.A.No.228 of 1991 dated 21.03.1994. In the restoration proceedings, notice was not served upon the 5^th defendant or his legal heirs. Therefore, the restoration of the suit is bad in the eye of law.

c) Without impleading the legal heirs of the 5^th defendant, a preliminary decree came to be passed as against the dead person namely the 5^th defendant on 13.04.1994. Therefore, the said preliminary decree is a nullity.

d) Though the decree holder had knowledge about the death of the 5^th defendant, without impleading the legal heirs of the 5^th defendant, a final decree application came to be filed in I.A.No.105 of 1998 by the decree holder. There is a specific reference in the final decree proceedings that the 5^th defendant had passed away. However, no steps were taken to implead the legal heirs of the 5^th defendant.

5. The trial Court has proceeded to pass a final decree on 22.12.2003. Therefore, the final decree, having been passed as against a dead person, is also a nullity.

6. Based upon the final decree, the decree holders have filed E.P.No.48 of 2010. In the execution proceedings, the legal heirs of the deceased 5^th defendant have been impleaded as respondents 34 and 35. Though specific objections were raised with regard to the executability of the final decree, the Executing Court without properly appreciating the validity of the final decree