Ex.F.A.No.33/2012 Page 1 of 4

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Ex.F.A.No.33/2012

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13^th October, 2014

DELHI DEVELOPMENT AUTHORITY

......Petitioner

Through:

Mr. R.S. Mathur, Advocate.

VERSUS

M/S. HANS CONSTRUCTION CO.

...... Respondent

Through:

Mr. Indranil Ghosh, Advocate.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1.

This first appeal has been filed by the decree holder/DDA

challenging the impugned order dated 20.4.2012 by which the executing

court has dismissed the execution petition on the ground that the decree

obtained by the appellant/decree holder is a nullity inasmuch as Sh. Balwant

Jain, proprietor of the defendant firm M/s. Hans Construction Co., had died

on 5.11.2001 i.e before ex parte judgment and decree was passed on

9.1.2004 and hence the decree against a dead person is a nullity.

2014:DHC:5288

Ex.F.A.No.33/2012 Page 2 of 4

2.

By the ex parte judgment and decree dated 9.1.2004, suit of the

appellant/decree holder was decreed against the defendant/M/s. Hans

Construction Co. for an amount of Rs.5,58,034/- alongwith interest and

costs.

3.

No doubt, it is an admitted fact that Sh. Balwant Jain, sole

proprietor of M/s. Hans Construction Company died on 5.11.2001, but,

equally it is an admitted fact that this aspect was not brought to the notice of

the decree holder either by the counsel for the defendant or by the legal heirs

of the defendant. In fact, the defendant was proceeded ex parte in the suit

much later on 14.1.2003 i.e defendant died on 5.11.2001 and was proceeded

ex parte later on 14.1.2003. The suit, as already stated above, was

ultimately decreed on 9.1.2004.

4.

Order XXX Rule 10 of Code of Civil Procedure, 1908 (CPC)

states that a suit can be filed in the name of a firm in which a person is a sole

proprietor. This provision also states that the earlier provisions of Order

XXX CPC pertaining to a partnership firm will apply mutatis mutandis with

respect to the suit filed against a firm which is thus not against a person. A

suit filed against a partnership firm will not abate on account of death of a

partner. Since Order XXX Rule 10 states that provisions of Order XXX

2014:DHC:5288

Ex.F.A.No.33/2012 Page 3 of 4

Rules 1 to 9 CPC will apply mutatis mutandis to suits against a defendant

which is a firm, in my opinion, in terms of Rule 4 of Order XXX CPC in a

suit such as the present, where only the firm is sued, there would be no

abatement of the suit even if sole proprietor of the defendant dies during the

pendency of the suit because the fact with respect to the death of the

defendant ought to have been brought to the notice of the plaintiff by the

counsel for the defendant and which was a duty specifically casted on the

counsel for the defendant in terms of Order XXII Rule 10A of CPC, and

which duty was not complied with. Admittedly, the counsel for the

defendant never communicated the factum of the death of the defendant on

5.11.2001 and in fact the defendant was later proceeded ex parte on

14.1.2003 as stated above.

5.

Further, Order XXII Rule 4 of CPC specifically provides that

where defendant is proceeded ex parte, and thereafter such a defendant dies,

the suit can continue against the deceased defendant without bringing his

legal heirs on record, subject of course to the taking of the necessary

permission from the Court, and in my opinion, the spirit of this provision

will apply to the facts of the present case where the decree holder/plaintiff

was never informed with respect to the death of the sole proprietor of the

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