A final decree passed in the absence of the legal representatives of a deceased defendant is a nullity, and the executing court can refuse to execute such a decree.

P. C. MISRA, J.

( 1 ) THIS revision has been referred to be decided by a Division Bench as it was noticed that there has been divergence of judicial opinion as to whether if no substitution is made on the death of a defendant after the passing of the preliminary decree, the final decree passed would be nullity and whether the executing court can refuse to execute such a decree. The learned single Judge after noticing the aforesaid divergent opinion entertained a doubt regarding the correctness of decision of this Court in the case of Jagannath Samantra v. Sudarsan Das reported in AIR 1961 Orissa 140 and this is how this matter has come before this Bench for hearing.

( 2 ) DEFENDANT 3 in O. S. No. 15/4 of 1951/52 is the petitioner in this revision. The aforesaid suit was filed by the father of the present opposite party 3 for partition of the suit properties in the court of the Subordinate Judge, Balasore. A preliminary decree for partition was passed in the said suit on 12-7-1952. An application was, thereafter filed by the plaintiff to make the decree final. The court started a final decree proceeding on the said application and appointed a commissioner under O. 26, R. 13 of the C. P. C. (hereinafter referred to as the `code') to carry on measurement in order to make partition of the properties according to the rights as declared in the preliminary decree. The Commissioner submitted his report on 21-12-1976. Defendant 2, namely, Gopi Puhan had already expired on 4-11-1976 before the submission of the report by the Commissioner. It appears that the court, was not informed about the death of defendant 2 and consequently the court accepted the report of the Commissioner and passed the final decree on 12-9-1977. It is alleged that the said deceased defendant No. 2 left behind a daughter, namely, Smt. Rambha Mohanty as his sole legal representative. The final decree was put to execution in Execution Case No. 8 /81 by one Balaram Puhan claiming himself to be the adopted son of deceased Gopi Puhan. Notice having been issued under O. 21, R. 22, the present petitioner (defendant 3) appeared and filed an objection under S. 47 read with O. 21, R. 23 of the Code which was registered as Misc. Case No. 189/ 81. The objection raised against the execution case by the present petitioner was twofold :- (a) Defendant 2 having died by the date of the final decree and his legal representatives having not been substituted it was a decree against a dead man and is, therefore, a nullity. (b) Balaram Puhan is not the son and legal representative of late Gopi Puhan and, therefore, he cannot execute the decree as a decree-holder. By the impugned order, the Subordinate Judge dismissed the said Misc. Case holding that the decree was not a nullity in the peculiar circumstances of the case. He, however, did not record any finding as to whether Balaram Puhan, the person who has filed the Execution Case as decree-holder is the adopted son of deceased defendant 2.

( 3 ) THE learned trial court relied on three decisions of different High Courts, namley, the decisions reported in AIR 1983 Mad 5 (Abdul Azeez Sahib v. Dhana Bagiammal), AIR 1954 Cal 205 (Himangshu Bhusan Kar v. Manindra Mohan Saha), and AIR 1959 Bom 384 (Raddulal Bhurmal y. Mahabirprasad Bisezar Kalwar) in support of the proposition that a decree passed in favour of a dead person is not a nullity as the fact of death was not brought to the notice of the court when it passed the decree. The learned court below has expressed the view that a decree passed in such circumstances is only an irregularity and it cannot have the effect of making the decree void ab initio. Learned counsel for the petitioner has relied on the decision of this Court reported in AIR 1961 Orissa 140 (Jagannath Samantra v. Sudarsan Das) which takes the view that a final decree passed in a partition suit against the defendants, two of whom were dead at the time of passing of the final decree is a nullity.

( 4 ) THE legal juri