Madras High Court
M. Subramania Aiyar vs Vaithinatha Aiyar And Anr. on 18 November, 1913
Equivalent citations: 31IND. CAS.198, AIR 1916 MADRAS 656
JUDGMENT Oldfield, J.
1. It is admitted teat me decree under execution was passed after the death of the defendant and before his legal representatives were impleaded. It is argued, firstly, that this did not affect its validity, and secondly, that the decree passed is not void but must be set aside in separate proceedings for that purpose, before it can be treated as a nullity.
2. Goda Coopuramier v. Sundarammal 3 Ind. Cas. 739 : 33 M. 167 : 6 M.L.T. 271 is relied on. But it deals with exceptional circumstances and the case of a plaintiff; and it is not clear that the decision would have been the same if a decree against a defendant had been in question. On the other hand, in Janardhan v. Ramchandra 26 B. 317 : 4 Bom. L.R. 23, Radha Prasad Singh v. Lal Sahib Rai 13 a. 53 : 17 I.A. 150 : 5 Sar. P.C.J. 600 and Imdad Ali v. Jagan Lal 17 A. 478 : A.W.N. (1895) 109, the two last mentioned cases relating to decrees against defendant, it was held that the decrees were nullities. Authority is, therefore, against the petitioner's contention on this point; and, the decree under execution being null and void, proceedings to void it are unnecessary.
3. It is argued, next, that the respondents could not take objection to the decree in execution proceedings. But their objection was to the jurisdiction of the Court to pass it. It was, therefore, rightly considered and allowed.
4. Lastly, it is argued that the present application to join the respondents as legal representatives of the deceased defendant and for execution should have been treated as one for the former relief and for setting aside the abatement and that the trial of the suit should have been resumed. It does not appear that this was suggested in the lower Court; and in fact the defendant's death is referred to incorrectly in the petition as subsequent to the passing of the decree. For this reason and on its merits the suggestion is unacceptable.
5. The civil revision petition is dismissed with costs.