Andhra HC (Pre-Telangana)
S. Mohan Reddy vs P. Chinnaswamy And Ors. on 27 November, 1991
Equivalent citations: 1991(3)ALT513
JUDGMENT Neeladri Rao, J.
1. The petitioner in I.A.No. 1281 of 1986 in LA. No. 1144 of 1983 in O.S.No. 190 of 1971, Principal Sub-Court, Tirupati is the revision petitioner. R-2 herein filed O.S.No. 37 of 1970, Sub-Court, Chittoor ( re-numbered as O.S.No. 190 of 1971, on the file of the Principal Sub-Court, Tirupati) for partition of the plaint schedule property into four equal shares and for allotment of one such share to her and for separate possession of the same. She alleged that her two brothers and her deceased sister Kuppamma are the heirs of their mother Laxmakka who owned the plaint schedule property. Her plea was accepted and preliminary decree was passed declaring that plaintiff and her brothers are entitled to 1/4th share each and D-3 to D-5, the children of her deceased sister are entitled to the remaining 1/4th share. It was confirmed in the appeal. In 1983, i.e., after the passing of the preliminary decree, D-3 died. Without bringing the L.Rs. of D-3 on record, I.A.No. 1144 of 1983 was filed for passing of the final decree. On 25-4-1986, the final decree was passed. I. A.No. 1281 of 1986 was filed by the revision petitioner by contending inter alia that the final decree is void as one of the sharers died by the time the final decree was passed and as his L.Rs. were not brought on record.
2. While it is contended for the petitioner that the final decree dated 25-4-1986 is a nullity as one of the respondents was a dead person by the date of the final decree, it was urged for the respondents that the decree is only voidable which is liable to be set aside at the instance of the L.Rs. of D-3 and the said decree is not void. The lower Court upheld the contention of the latter and dismissed the application. The same is attacked in this revision petition.
3. It is well-established proposition of law that a suit cannot be dismissed on ground of abatement after a preliminary decree was passed for thereby rights are accrued to one party and liabilities are incurred by the other: vide Lachiminarayan v. Balmadund, AIR 1924 P.C. 198. It was observed therein " After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside."
After a decree, any party can apply to have it enforced. As such, the suit does not abate under Order 22 Rules 1, 3 or 4 C.P.C. after a preliminary decree is passed. But, it is equally a general principle of law that a decree cannot be passed in favour of or against a dead person. It is enough to refer to the two judgments of our High Court which lend support to the same: Venkata Ram Rao v. Narayana, and Madhava Rao v. Basavayya, 1973 (2) ALT 170. In Venkata Ram Rao's Case (2 supra), the point that had arisen for consideration before the Full Bench was as to whether the surviving appellant can invoke Order 41 Rule 4 CPC, when steps were not taken for bringing the L.Rs. of the deceased appellants on record in accordance with Order 22 Rule 3 read with Order 22 Rule 11 CPC. While adverting to the said question, it was observed in para 8 of the judgment:
" .........................In determining this controversy, the very first principle that should be kept in mind is that a Court can pass no decree for or against a dead person, unless the law otherwise provides, such as for instance, Order 22 Rule 6, where it is provided that if either of the party dies between the conclusion of the hearing and the pronouncing of the judgment, whether the cause of action survives or not and notwithstanding anything contained in any rules specified therein, a judgment can be pronounced and shall have the same force and effect as if it had been pronounced before the death took place."
In Madhava Rao's Case (3 supra), a suit for dissolution of partnership firm and settlement of accounts was dismissed and a preliminary decree was passed for dissolution and settlement of accounts by the first Appellate Court. Three defendants preferred a second appeal. During the pendency of the second appeal, one of those defendants died. A petition was filed for appointment of a commissioner for ascertaining the amounts due in favour of and against the partners. When it was contended that the preliminary decree abated when the legal representatives of the appellant were not brought on record in the second appeal, it was observed in the said case that" if in ignorance of the fact of the death of any of the parties to the appeal, the appellate Court proceeds to hear the matter and passes a decree either of affirmance or of variation or reversal, the decree is of no consequence whatever and the preliminary decree passed subsist, notwithstanding the appeal and its abatement". It was further observed therein that" the trial Court must proceed to pass a final decree when approached to do so and such a final decree cannot be passed without impleading the legal representatives of the deceased partner". But, in either of those two cases, the question as to whether a final decree in a suit for partition in its entirety is a nullity if one of the respondents died by the date of final decree and when the legal representatives of the deceased were not brought on record had not arisen.
4. Section 2 (2) CPC defines the decree as a formal expression of an adjudication which, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The adjudication should be after hearing both the parties. A deceased person cannot be deemed to have been heard. Even Order 22 Rule 6 lays down that a suit does not abate, if the death is subsequent to the hearing of final arguments.
5. Justice Mohan ( as he then was) held in S. Sundaresa Mudaliar v. Mayavaram Financial Corporation Limited, AIR 1924 P.C. 198 that "properly speaking, therefore, there could not be any valid consent on behalf of the 2nd defendant" when it was found that the 2nd defendant therein died even before the consent decree was passed. As a decree has to be passed after hearing the parties to the suit, this Court held that a decree cannot be passed in favour of or against a dead person. It can be further stated that a decree can be executed only against a judgment, debtor or persons claiming under him. A dead person cannot be a judgment debtor. A decree can be passed only against a live person except to the extent provided under Order 22 Rule 6 CPC. When a decree against a dead person is sought to be executed, the legal representatives of the deceased can urge that there was no decree against their ancestor and as there was not even a decree against them (legal representatives), it cannot be executed against them. It was held in Janab Ali v. Satischandra, AIR 1936 Cal. 698 that the mortgage decree passed against the mortgagor who was dead by the date of the decree is void. But, the question arises as to whether the entire decree is a nullity, if one of the defendants died by the date of the decree. ln R.P. Gupta v. Murali Prasad, , the majority held that the appeal abates as a whole for failure to bring on record the legal representatives of one of the respondents-sharers during the appeal. After considering the scope and ambit of Order 22 Rule 3 and 4 CPC, it was observed therein that the Courts should apply one or the other of the following three tests to consider whether an appeal can be proceeded with when L.Rs. of the deceased appellant or the respondent were not brought on record:
(a) When the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent;
(b) When the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and
(c) When the decree against the surviving respondents if the appeal succeeds, be ineffective that is to say it could not be successfully executed.
6. As I already observed, a suit cannot be dismissed except on appeal or by review after a preliminary decree is passed. It follows that there cannot be abatement of the suit even if the L.Rs. of the deceased party are not brought on record during the final decree proceedings. But, even a final decree cannot be passed for or against a dead person. So, it is necessary to bring on record the L.Rs. of the deceased before a final decree is passed. It has to be seen as to what provision is applicable when Order 22 Rules 1,3 and 4 are not applicable in case of death of parties during the final decree proceedings.
7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation or devolution of any interest other than the cases referred to in remaining Rules of Order 22, the suit may by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. When Order 22 Rules 3 or 4 is not applicable in cases of death during the final decree proceedings, one has to invoke Order 22 Rule 10 CPC to bring the L.Rs. on record. Ramsewak v. Mt. Deorathi, lends support to the said proposition.
8. A suit for partition or dissolution of a firm cannot be filed without impleading all the sharers or partners. Thus, a suit against only some of the partners or sharers does not lie. So, a suit has to be dismissed if L.Rs. of one of the partners or sharers are not brought on record when the partner or sharer died before the passing of the preliminary decree. There may be more than one Mortgagors in a mortgage suit. If after passing of a preliminary decree in a mortgage suit, one of the mortgagors dies and being ignorant of the same, a final decree is passed, then the entire decree cannot be held as a nullity, for the joint decree has to be construed as joint and several decree in view of Section 43 of the Contract Act and as such, the mortgagee-decree-holder can execute the final decree as against the interest of the other surviving mortgagors.
9. The principle underlying is that it is a case of final decree that can be executed against any of the mortgagors to the extent of his interest in the property and the wrong decree against one of the mortgagors i.e., the deceased, does not invalidate the decree passed against the mortgagors, who are living. But, a final decree in a suit for partition or dissolution and settlement of accounts can be passed after hearing all the partners or sharers. If a part of it has to be held as void, the remaining decree does not stand. It is open to the legal representatives of the deceased even to file a suit for declaration that such a decree is void. If the decree against the deceased is set aside, the decree against the remaining partners or sharers does not survive. It follows that a part of the final decree in a suit for partition or dissolution and settlement of accounts cannot be held as valid when remaining part is a nullity, Thus, in such cases, the entire decree had to be held as a nullity.
10. in Vellayanchetty v. Jothi Mahalinga Aier, 1915 Indian Cases 83 (Vol. 28) it was observed that appeal need not be re-opened when the appeal was dismissed even though one of the respondents died few days before hearing of the appeal. Even if steps are taken for brining the L.Rs. of the deceased respondent on record, the latter would not advance arguments in support of the appellant. As such, it was held that the appellant could not claim rehearing of the appeal, as in the interest of justice, it is not desirable to give a right to an unsuccessful litigant to argue his case more than once merely on the ground that one of the other parties to the proceedings was dead at the time of hearing. It was followed in Suryanarayana v. Joga Rao, AIR 1930 Mad. 719 . Those judgments are not inconsistent with the proposition that no decree can be passed in favour of or against a dead person. It is a mere confirmation of a decree on dismissal of appeal. So, the point that had arisen in those appeals is whether is the interest of justice an opportunity of further hearing has to be given the only right which the appellant could get even after the appellant is permitted to bring on record the L.Rs. of the deceased respondent Thus the death of one of the respondents cannot be considered as a just or sufficient cause for re-opening or re-hearing the appeal. Suffice it to observe that the above decisions are not inconsistent with the general principle that a decree cannot be passed in favour of or against a dead person.
11. The effect of death of one of the judgment-debtors when all the judgment-debtors were jointly and severally liable after passing of the preliminary decree and before final decree was passed, was considered in Nathuni Narayana Singh v. Arjun Gir, AIR 1925 Pat 434. It was observed that the Court had jurisdiction to make a final decree against the respondents. The decree may not be valid as against the L.Rs. of the deceased respondent. But, the surviving respondents cannot impeach its validity, as it is a joint and several decree. It was a case where all the judgment-debtors were held liable for mesne profits in a suit for possession. When each of the judgment-debtors can beheld liable for the entire decree, the decree as against the living respondents is valid. It is open to the plaintiff in such cases, to proceed against some of those respondents only. In the same judgment, Junglilal v. Laddu Ram Marwari, 50 I.C. 529 was referred to wherein it was held that when a suit abates as against one of the defendants, the property of the deceased defendant was not liable to be taken in execution of that decree. The above judgments are not helpful to consider whether a final decree in its entirty in a suit for partition is a nullity, if one of the respondents died during the pendency of the final decree proceedings.
12. In Ajoy Kumar v. Pushpabala, AIR 1952 Assam 54, the Court considered the following facts: One of the respondents who was alive by the time the preliminary decree was passed in a suit for accounts died by the time the final decree was passed and his L.Rs. were not brought on record. It was held that the executing court cannot consider whether such a decree was valid or not and the proper remedy was by way of a separate suit. In Raddulal v. Mahavir Prasad,50 I.C. 529 it was held that a decree passed against a deceased cannot be treated as a nullity, for the questions as to whether one of the several plaintiffs had died and whether the right to sue survives or not are the questions which had to be considered at the appropriate stage before the disposal of the suit and if such decree was passed being ignorant of the death of one of the parties, it is merely a wrong decree. A Court had jurisdiction to decide matters rightly or wrongly and that merely because the court decides the matter wrongly, the decree cannot be treated as a nullity: vide Shidramappa Pasare v. Harihari Bin Shivappa, 27 I. A. 216.
In that case, one of the plaintiffs was dead even before the preliminary decree was passed in a mortgage suit for foreclosure. The L.Rs. of the deceased had come on record when final decree was prayed for. But, as already referred to, one of the tests that had to be considered as per the judgment in R.P. Gupta's Case (6 supra) is as to whether the appeal can be continued in the absence of some of the parties to the proceedings. Of course, the tests therein were referred to while construing Order 22 Rules 3 and 4 CPC. But, the same test can be adopted in order to determine whether the final decree in its entirety has to be treated as a nullity when one of the respondents was not alive by the date of final decree. If it is a decree for mesne profits or a mortgage decree and as all the judgment-debtors are jointly and severally liable as under Section 43 of the Contract Act, the joint liability has to be construed as joint and several liability, each one of the judgment-debtors is liable. In such cases final decree can be executed against each of the judgment-debtors. Even if such decree is null and void as against one or some, it will not affect the validity of the other decrees. In such cases, the final decree in its entirety is not a nullity. But, accounts have to be settled and properties have to be partitioned in the presence of all sharers. Then, a decree in favour of or against the surviving partners is not severable from the decree in favour or against the deceased sharer. The decree in favour of or against one depends on the decree in favour of or against the other. Thus, if it is necessary to consider the share of one of the sharers, it is necessary to reconsider the shares of others also if it is a case of partition of properties. It follows that the final decree in its entirety in a suit for partition had to be held as a nullity, if one of the respondents therein was dead before the date of decree and his L.Rs. were not brought on record before that date. Ajoy Kumar's Case (12 supra) and ... Idulal's case (13 supra) referred to for respondents cannot be preferred to the judgments relied upon for the revision petitioner in view of the judgment in R.P. Gupta's Case (6 supra).
13. In Birbal v. Harlal, , it was merely held that the ignorance of the death of a party is a very good ground for not moving the Court to bring his L.Rs. on record and it is also a sufficient course for not making the application in time. It was held therein that even if opportunity is given for brining the L.Rs. on record to proceed with the case from the stage at which the party died, it would not make any difference in that case, for the legal representatives of the deceased supported the decision therein.
14. In this context, Order 22 Rule 9 CPC can be referred to. It provides that plaintiff or the person claiming to be the L.R. of the deceased plaintiff or assignee or the receiver in the case of an insolvent plaintiff, may apply for an order to set aside the abatement or dismissal. It is applicable only in cases where the suit abates under Order 22 Rules 3 or 4 CPC. In cases where the appeal or suit abated but when the decree or the order in the appeal was passed when the death of one of the parties was not brought to the notice Of the Court, it was held that opportunity has to be given to bring the L.Rs. of the deceased on record and there was no need to give such an opportunity where it is a case of death of one of respondents in the appeal or one of the plaintiffs in the suit where the appeal is dismissed or the suit is decreed. An appeal can be heard even when the respondent is absent. Even in such cases, some of the appeals may be dismissed. It will not make any difference in regard to the opportunity availed by the appellant in presenting his case when the absence of the respondent is due to his death or otherwise. Similarly, when the L.Rs. of the plaintiff support the decree which they will normally do, no purpose will be served for re-opening the case and again hearing it.
15. But, Order 22 Rule 9 is not applicable in case of final decree proceedings. It is not a case of abatement in final decree proceedings. So, Birbal's Case (15 supra) and Raddulal's Case( 13 supra) which are considered in cases of abatement, are not helpful for considering the effect of final decree if one of the respondents was dead by the date of the decree. But, as the general principle is that there cannot be a decree in favour of or against a dead person, the final decree against a dead person has to be held as void. In final decree in a suit for partition, the entire decree has to be treated as nullity. As D-3 was dead by the date of passing of the final decree, the said decree has to be held as null and void. Accordingly the impugned order is liable to be set aside and the revision petition has to be allowed and I.A. No. 1281 of 1986 has to be allowed.
16. It is submitted for respondents that as the petitioner filed O.S.No. 76 of 1984, he cannot be permitted to file I.A.No. 1281 of 1986 for challenging the final decree. But, only preliminary decree passed in O.S.No. 190 of 1971 was challenged in O.S.No. 76 of 1984. But, it is the final decree which was passed in I. A.No. 1144 of 1983 that is being attacked as a nullity in LA.No. 1281 of 1986. Thus, the filing of O.S. No. 76 of 1984 by the revision petitioner is not a bar For challenging the final decree dated 25-4-1986 in I.A.N0.1281 of 1986.
17. But, it was stated that in execution of the final decree, the plaintiff (R-2) had already obtained her share. It is just and proper to order that till a final decree is again passed, the plaintiff (R-2) should not be dispossessed.
18. Subject to the above, the revision petition is allowed and the impugned order is set aside. I.A.No. 1144 of 1983 has to be restored to file and it has to be considered from the stage at which D-3 died. No costs in the revision petition.