JUDGMENT

Dated this the 25th day of February 2021

The effect of a decree against a dead person and the remedy available to a person aggrieved by such a decree arises for consideration in this second appeal. This appeal was admitted on a substantial question of law as to whether the learned District Judge was correct in dismissing the appeal and remanding the suit giving liberty to the parties to implead the legal heirs of the sole plaintiff without setting aside the decree?

2. The short facts necessary for the disposal of this

appeal are as follows: One Cheriyabi Kannipura filed a suit for declaration of title and other consequential reliefs on

26.11.2010. While the suit was pending consideration, the sole plaintiff expired on 16.03.2017. Death was reported to the court on 30.03.2017. Even after noting the death of the sole plaintiff died, but the legal heirs did not come on record. Oblivious of the non-impleadment of legal heirs, the court proceeded to hear the arguments on 25.07.2017 and decreed the suit on 26.07.2017. Challenging the decree, defendants preferred a first appeal. It was after issuance of notice in the appeal that it was realized that legal heirs of the sole plaintiff had not been impleaded. The legal heirs were thereafter impleaded in the appeal on 19.01.2018. By judgment dated

13.03.2020, the Appellate Court held the decree to be a nullity but dismissed the appeal and directed the legal heirs to seek recall of the decree after filing petition to implead in the trial court. This judgment is impugned in this second appeal.

3. As mentioned above, while dismissing the appeal the appellate court observed that the decree is a nullity since it was against a dead person and also that the remedy of the legal heirs of the deceased sole plaintiff was to file an application to recall the decree. Reliance was placed upon the decision in, Uma Antherjanam vs Neelakanta Namboothiri (2001 KHC

554). It was further observed that, if an application for impleadment is filed, the same shall be disposed of within a time limit. The suit was also directed to be disposed of in a time-bound manner.

4. The learned Senior counsel Sri.T.Sethumadhavan instructed by Adv. P.V. Preethi submitted that the second appeal is filed mainly for three reasons. They are (i) once a decree is found to be a nullity, there was no necessity for recalling the said decree, (ii) the dismissal of the appeal was incorrect as it amounts to confirmation of the trial court decree and (iii) impleadment of legal heirs cannot be automatic as the suit had abated. The learned Senior counsel also submitted that the directions by the Appellate Court indicates a positive direction to implead the legal heirs which prejudices the rights of the appellants.

5. The learned counsel Sri.V.V Surendran appearing on behalf of the legal heirs of the sole plaintiff, on the other hand, while admitting the death of the sole plaintiff submitted that the contentions of the defendants are highly technical and also that pursuant to the impugned judgment of the First Appellate Court, the legal heirs had filed applications to recall the decree and to implead the legal heirs before the trial court.

He thus sought for dismissal of this appeal.

6. The principle that a decree in favour of a dead person is a nullity needs no reiteration. It was observed by the Privy Counsel in the decision, Radha Prasad Singh vs Lal Sahib Rai ILR (1891) 13 All 53 (PC), and also in Debi Bakhsh Singh vs Habib Shah (1913) ILR 35 331 (PC), that a decree obtained against a person or a decree passed in favour of a dead person, is a nullity.

7. A reference to the statutory provisions dealing with death of a party to the suit may be apposite in this context. Order XXII of the Code of Civil Procedure, 1908 (for short 'the CPC') deals with the procedure on the death