A decree in favor of a deceased party is not a nullity, allowing legal heirs to execute the decree despite procedural irregularities.

ORDER :

N. SATHISH KUMAR, J.

Challenge has been made to the order passed by the Executing Court dismissing the application filed under Section 47 of the Code of Civil Procedure, the present revision has been filed.

2. The suit has been filed originally by the sole plaintiff as against the defendant in O.S.No.353 of 2004 for recovery of mortgage money. A preliminary decree was passed on 12.01.2007. As the amount has not been piad as directed in the preliminary decree, final decree has been passed on 08.06.2016 in I.A.No.1372 of 2007. To execute the said decree, execution petition has been filed by the legal heirs in R.E.P.No.132 of 2019. The decree has been challenged only on the ground that during the pendency of the final decree proceedings, the plaintiff has died on 27.10.2015, however, the final decree has been passed on 08.06.2016. Therefore, according to the plaintiff decree passed in favour of a dead person is not valid in the eye of law. Further, the respondents have not filed any documents to prove that they are the legal heirs of the deceased plaintiff. An application has been filed by the legal heirs under Section 50 of CPC and they have been recognised by the executing court which is not in accordance with law.

3. The said application has been opposed by the respondent by filing counter. The executing court clearly found that merely quoting wrong provisions of law in bringing the legal heirs will not vitiate the proceedings, the defects is curable and can be cured at any time. As far as the submission that decree in favour of the plaintiff is concerned, the Trial Court has clearly held that decree in favour of a dead person is not nullity as held by B.K.Basha vs. Mohamed Ali and others made in CRP.(NPD).No.771 of 2014 in MP.Nos.1 & 2 of 2014 dated 14.02.2018.

Challenging the said order, the present revision has been filed.

4. The learned counsel for the petitioner submitted that the decree cannot be enforced, since the final decree has been passed after the death of the plaintiff. Similarly, legal heirs have been impleaded without any formal petition and wrong provision has been quoted. Further, it is his contention that the amount sought to be recovered is only Rs.27,50,000/-, whereas, the property sought for attachment is worth about Rs.50 lakhs which is impermissible in the law. Hence, seeks for allowing this revision.

5. Heard both sides and perused the materials placed on record.

6. As far as the first contention that the decree in favour of a dead person is nullity is concerned, such contention has no force for the simple reason that decree against a dead person is construed as nullity and a decree passed in favour of a dead person is not construed as nullity. This proposition has been repeatedly held by this Court time and again. In fact, the Trial Court has also considered the same aspect. Therefore, the contention of the learned counsel in this regard is negated. In this regard, it is useful to refer to an order of this Court in the case of Abdul Azeez Sahib v. Dhanabagiammal and others reported in 1981 SCC OnLine Mad 254 , wherein, it is held as follows:

“ 3. The learned counsel for the petitioner relying on the two decisions reported in Himangshu Bhusan Kar v. Manindra Mohan Baha, AIR 1954 Cal 205 and Raddulal Bhurmal v. Mahabirprasad Bisesar Kalwar, AIR 1959 Bom 384, contended that a decree passed in favour of a dead person is not a nullity, and the fact of death not brought to the notice of the Court when it passed the decree is o