A decree issued against a deceased party is unenforceable if an exemption under Order XXII Rule 4 is not obtained prior to judgment; it represents an irregularity rather than an absolute nullity.

ORDER :

N. SATHISH KUMAR, J.

1. Challenge has been made to the order dismissing the Execution Petition, the present revision has been filed.

2. The petitioner/plaintiff has filed a suit in O.S.No.6221/2021 on the file of XXIII Assistant Judge, City Civil Court, Chennai for recovery of money for a sum of Rs.8,90,000/- together with interest at the rate of 24% per annum. The suit has been decreed ex parte on 18.11.2021. Execution Petition was filed in E.P.No.686 of 2022, only in EP proceedings, notices were ordered to Judgment Debtor and it came to the notice of the Court that the judgment debtor died on 15.10.2021, even before the judgment and decree passed against the judgment debtor. Thereafter, the death certificate is also produced by the Court Amin. Subsequently, an application under Order XXII Rule 4 of CPC was also filed by the decree holder for impleading the legal heirs of the deceased judgment debtor, though the legal heirs received notice, they have not appeared before the Court and they were set exparte. Further, the Executing Court found that as the decree is passed against the deceased is not enforceable, accordingly, the E.P.686/2022 was dismissed on 24.08.2022. Challenging the dismissal, this revision.

3. The learned counsel for the petitioner would submit that the decree passed in favour of a dead person is not a nullity and the fact of the death not brought to the notice of the Court, it is only an irregularity and it cannot have the effect of making the decree void ab initio and the decree is executable. Further, it is stated that when the Court proceeds with the case ignorance of the fact of the death of person and passes a decree, the decree cannot be treated as nullity. Though it may be a wrong decree, it has to be set aside only in appeal, revision or review. Hence, seeks allowing of the revision.

4. The learned counsel for the respondents submitted that unless an exemption under Order XXII Rule 4 of CPC is obtained in the Civil Court before the judgment is passed, the decree passed against a dead person is nullity in the eye of law.

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

6. Though much reliance has been placed by the petitioner to an order of this Court in the case of Abdul Azeez Sahib vs. Dhanabagiammal and others reported in 1981 SCC OnLine Mad 254, wherein, this Court has held as follows:

"4. In the instant case, as the defendants have not chosen to challenge the decree either by way of appeal, revision or review, or to have it set aside in the suit itself by appropriate proceedings, it is not open to the executing Court to refuse execution of the decree on the ground that the decree has been passed in favour of a dead person.

5. As the decree passed in ignorance of the death of the plaintiff is a mere irregularity and cannot have the effect of making the decree as one without jurisdiction, the lower appellate Court's finding that the decree is void ab initio is clearly erroneous. "

7. In this regard, the Hon'ble Apex Court in the case of T. Gnanavel vs. T.S. Kanagaraj and another made in Civil Appeal No. 1259 of 2009 dated 25.02.2009 has held that the exemption to be granted by the court has to be obtained before the judgment is delivered and not after it. The relevant paragraphs reads as follows:

"17. For the reasons aforesaid, we are of the opinion that the High Court had rightly interpreted the provision of Order XXII Rule 4(4) CPC and accordingly held that the decree passed by the trial court on 20^th December 2002, in OS No. 3946 of 1999 was a nullity in the eye of the law as the defendant had died during the pendency of the suit for specific performance of the c