Kerala High Court
K.V.Gopalan vs Nandini Narayanan on 29 January, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA,
1936
OP(C).No. 783 of 2013 (O)
--------------------------
E.P. 73/2011 IN O.S. 307/1997 OF MUNSIFF'S COURT,
PERUMBAVOOR.
PETITIONER(S):
--------------
K.V.GOPALAN,
S/O.LATE VELAYUDHAN, BUSINESS, AGED 67,
KUZHIMUNDAYIL HOUSE, KUMMANODU KARA,
PATTIMATTOM VILLAGE, PATTIMATTOM P.O.,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,
PIN-683 562.
BY ADV. SRI.SHIJU VARGHEESE
RESPONDENT(S):
--------------
1. NANDINI NARAYANAN, W/O.LATE NARAYANAN,
AGED 70 YEARS, KUZHIMUNDAYIL HOUSE,
KUMMANODU KARA, PATTIMATTOM VILLAGE,
PATTIMATTOM P.O., KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN-683 562.
2. ROSHAN NARAYANAN, S/O.LATE NARAYANAN,
AGED 32 YEARS, KUZHIMUNDAYIL HOUSE,
KUMMANODU KARA, PATTIMATTOM VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,
PIN-683 562.
3. DEEPA NARAYANAN,D/O.LATE NARAYANAN,
AGED 34 YEARS,KUZHIMUNDAYIL HOUSE,
KUMMANODU KARA, PATTIMATTOM VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,
PIN-683 562.
4. DEEPTHI NARAYANAN, D/O.LATE NARAYANAN,
AGED 36 YEARS, KUZHIMUNDAYIL HOUSE,
KUMMANODU KARA, PATTIMATTOM VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,
PIN-683 562.
R1,R2&4 BY ADV. SRI.VIPIN NARAYAN
BY ADV. SMT.M.M.DEEPA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C). 783 OF 2013.
APPENDIX
PETITIONER'S EXTS:
EXT. P1 : TRUE COPY OF THE CERTIFICATE OF DEATH DATED
29.1.2000.
EXT. P2 : TRUE COPY OF THE COMPROMISE PETITION FILED IN
O.S. NO. 07/1997 DATED 29.3.2000.
EXT. P3 : TRUE COPY OF THE JUDGMENT IN O.S. NO. 307/1997
OF THE MUNSIFF'S COURT, PERUMBAVOOR DATED 31.3.2000.
EXT. P4 : TRUE COPY OF THE JUDGMENT IN O.S. 158/2008
BEFOR THE HON'BLE SUB COURT, PERUMBAVOOR DATED
15.12.2010.
EXT. P5 : TRUE COPY OF THE JUDGMENT IN O.S. 158/2008 OF
THE HON'BLE SUB COURT, PERUMBAVOOR DATED 14.1.2011.
EXT. P6 : TRUE COPY OF THE EXECUTION PETITION
NO.73/2011 IN O.S. NO. 307/1997 DATED 2.9.2011.
EXT. P7 : TRUE COPY OF THE NOTICE SERVED ON THE
PETITIONER IN E.P. NO. 73/2011 IN O.S. NO. 307/1997,
DATED 28.9.2011.
EXT. P8 : TRUE COPY OF THE PRELIMINARY OBJECTIONS FILED
BY THE PETITIONER IN E.P. NO. 73/2011, DATED 1.6.2011.
EXT. P9 : TRUE COPY OF THE E.A. NO. 47/2012IN E.P. NO.
73/2011 DATED 6.2.2012.
EXT. P10 : TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS IN E.A. NO. 47/2012 IN E.P. NO. 73/2011 DATED
16.7.2012.
EXT. P11 : TRUE COPY OF THE ADDITIONAL OBJECTIONS IN
E.P. NO. 73/2011 DATGED 6.2.2012.
EXT. P12 : TRUE COPY OF THE ORDER IN E.P. NO. 73 IN O.S.
NO. 307/1997 DATED 20.12.2012.
RESPONDENT'S EXTS:
EXT. R2(a) : TRUE COPY OF THE LETTER DAED 9.1.2007 SENT
BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.R2(b) : TRUE COPY OF THE EXECUTION PETITION NO.
28/2007 IN O.S. NO. 307/1997 OF THE MUNSIFF'S COURT,
PERUMBAVOOR DATED 30.1.2007.
EXT. R2 ) : TRUE COPY OF TRHE NOTICE SERVED ON THE
RESPONDENTS IN E.P. NO 28/2007 IN O.S. NO. 307/1997 OF
THE MUNSIFF'S COURT, PERUMBAVOOR.
EXT. R2(d) : TRUE COPY OF THE PLAINT IN O.S. NO.
158/2008ON THE FILE OF THE SUB COURT, PERUMBAVOOR.
EXT. R2(e) : TRUE COPY OF THE EXECUTION PETITION
NO.40/2009 IN O.S. NO. 307/1997 OF THE MUNSIFF COURT,
PERUMBAVOOR DATED 23.3.2009.
EXT. R2(F) : TRUE COPY OF THE OBJECTION DATED 5.8.2009
FILED BY JUDGMENT DEBTORS 2 & 3 IN EXT. R2(e).
EXT. R2(g) : TRUE COPY OF THE COMMON ORDER DATED
26.9.2009 IN E.P. NO. 40/2009 AND E.A. 107/2009 IN O.S.
307/1997 OF THE MUNSIFF'S COURT, PERUMBAVOOR.
EXT. R2(h) : TRUE COPY OF THE JUDGMENT IN W.P.(c) NO.
35858/2009 OF THIS HON'BLE COURT DATED 14.12.2009.
EXT. R2(i) : TRUE COPY OF THE ORDER ION I.A. NO. 10/10
IN O.S. NO. 158/2008 DATED 15.3.2010 OF THE SUB COURT,
PERUMBAVOOR.
EXT.R2(j) : TRUE COP7Y OF EXECUTION PETITION NO.37.2011
IN O.S NO. 307/1997 OF THE MUNSIFF COURT, PERUMBAVOOR.
EXT. R2(k) : TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER HEREIN IN E.P. 37/2011 IN O.S. NO. 307/1997 OF
THE MUNSIFF'S COURT, PERUMBAVOOR.
EXT. R2 (l) : TRUE COPY OF W.P.(C) NO. 33981 OF 2011
DATED 19.12.2011 FILED BY THE PETITIONER BEFORE THIS
HON'BLE COURT.
EXT. R2(m) : TRUE COPY OF THE COMPLAINT NO.
27/2011/PCSJ/KEL/RCC/EKM AND NOTICE ISSUED BY THE KERALA
LEGAL SERVICES AUTHORITY DATED 21.2.2011.
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - -
O.P.(C). No. 783 of 2013
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 19th day of December, 2014.
JUDGMENT
The fate of this Original Petition should depend upon the answer to the question whether a decree passed in favour of a dead person is void or voidable. If it is to be held as void, then necessarily the petitioner will have to succeed. Otherwise, the order of the court below will have to be upheld.
2. O.S. 307 of 1997 before the Munsiff's Court, Perumbavoor was filed by the predecessor-in-interest of the present decree holders for fixation of boundary between the property of plaintiff and defendant. The petitioner herein was the first defendant in the said suit. It needs to be mentioned here that the plaintiff in O.S. 307 of 1997 was represented by his power of attorney holder. A Commissioner was deputed to measure the property with the help of Surveyor and he measured the property and got a plan prepared. Narayanan, O.P.(C).783/2013.
2the predecessor in interest of the respondents herein, who instituted O.S.307 of 1997, died on 31.12.1999. However, the power of attorney holder and the defendants entered into a compromise and Ext.P2 is the compromise petition. The compromise was signed by the power of attorney holder on behalf of the plaintiff. Accepting the compromise, a decree was passed on 31.3.2000 as evidenced by Ext.P3 in terms of the compromise entered into between the parties.
3. Years thereafter, claiming to be co-owners with the first defendant in O.S. 307 of 1997 of the property involved in the compromise decree, the other alleged co-owners instituted O.S. 158 of 2008 for declaration that Ext.P3 compromise decree is a result of fraud, misrepresentation and collusion between the parties in O.S. 307 of 1997. So the decree is not binding on the plaintiff in the suit and on the basis of that decree, there could not be a fixation of boundary. The petitioner before this Court was the O.P.(C).783/2013.
3first defendant in the suit. He remained ex-parte. The respondents in the Original Petition were defendants 2 to 4 in the suit. Defendants 2 to 4 contested the suit. That suit was dismissed on the ground that the plaintiffs had already partitioned the properties and therefore, they had no subsisting interest along with the first defendant in the property involved in O.S. 307 of 1997.
4. Subsequently, the respondents herein instituted E.P. 73 of 2011 to execute the compromise decree in O.S. 307 of 1997. On getting notice of the execution proceedings, the petitioners before this Court entered appearance and filed their preliminary objection which is marked as Ext.P8 in this proceedings. Additional objections were filed and that is produced as Ext. P11.
5. The petitioner herein took objection to the executability of the decree on the ground that it was null and void since it was passed in favour of a dead person and the O.P.(C).783/2013.
4power of attorney holder who entered into the compromise has ceased to hold authority to represent the author of the power of attorney from latter's date of death.
6. The court below, on a consideration of the materials before it, held that the E.P. was maintainable and the petitioners before the court below were permitted to put up boundary wall and retaining wall along the resurvey boundary fixed by the Commissioner in terms of the compromise decree in O.S. No. 307 of 1997.
7. The said order is under challenge.
8. Learned counsel appearing for the petitioner raised only one contention for consideration of this Court and that is when the compromise was entered into, the author of the power of attorney was no more and therefore, the power of attorney executed in favour of the person who instituted the suit was no longer in force and that person could not have signed for the plaintiff in the compromise entered into O.P.(C).783/2013.
5between the parties. The contention extends further and goes on to claim that a decree passed on the basis of such a compromise in favour of a dead person is also null and void. If that be so, E.P. 73 of 2011 is only to be dismissed. It is further contended that, may be that the petitioner might have filed an E.P. on the basis of the same decree. But that will not validate the decree. Being a void decree, it can be attacked collaterally and the petitioner can set up a defence that the decree cannot be executed. For the above proposition, learned counsel relied on the decision reported in Vareed Jacob v. Jayakumar (2010(3) K.L.T. 389), Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (AIR 1970 SC 1475), 1976 K.L.T. 101 and Amba Bai v. Gopal ((2001) 5 SCC 570).
9. Countering the above contentions raised by the learned counsel for the petitioner, learned counsel appearing for the respondents contended that the compromise decree was passed on the basis of an admission as contemplated O.P.(C).783/2013.
6under Order XII Rule 6 of the Code of Civil Procedure and it is binding on the petitioner. It is not correct to say, accordingly to the learned counsel, that a decree passed in favour of a dead person is null and void. It is not so. Having suffered a compromise decree, the claim now raised by the petitioner before the execution court that the decree cannot be executed is barred by the principle of res judicata and for the above proposition, learned counsel relied on the decision reported in Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR 1953 SC
65). In support of his contention that the decree passed in favour of a dead person cannot be treated as a void decree, learned counsel relied on the decisions reported in Goda Coopooramier v. Soondarammall (ILR 33 Madras 167), (ILR 39 Madras 386) and Noai Chowkidar v. Official Trustee of Bengal (1929 Calcutta 527). Learned counsel then went on to point out that the petitioner before this Court apart from expressing his readiness and willingness to comply with the O.P.(C).783/2013.
7compromise decree as evidenced by Ext.R2(a), which is a letter written by him to the first respondent herein expressing his readiness to put up the boundary wall as per the decree, he also instituted execution proceedings in 2007 and that was not pursued later. Having thus accepted the compromise decree and acted on it, the petitioner cannot now turn round and say that the decree is null and void. He is estopped from doing so.
10. It was pointed out by the learned counsel for the respondents that in E.P. 40 of 2009 filed by the respondents herein, the petitioner had filed objection and Ext.R2(g) order was passed by the execution court. The execution court held that the question as to whether decree is vitiated by fraud cannot be gone into by the executing court and the decree was directed to be executed. That was challenged before this Court in W.P.(C) No. 35858 of 2009. The writ petition was disposed of by this Court by Ext. R2(h) O.P.(C).783/2013.
8judgment. The petitioner before this Court again preferred W.P.(C) 33981 of 2011 complaining that the respondents herein had encroached into puramboke property. That was also dismissed. E.P. 28 of 2007 was filed by the petitioner herein for execution of the very same decree and in that proceedings a Commissioner was deputed who prepared a plan which was totally inconsistent with the one prepared by the Commissioner at the trial stage. The execution petition happened to be dismissed on the submission made by the petitioner herein as not pressed. It is therefore pointed that at no point of time did the petitioner seek to challenge the validity of the compromise decree passed in O.S. 307 of 1997. But on the other hand, he stood by the decree and even took steps to have it enforced. He is therefore estopped from contending that the decree is void and cannot be executed. Even assuming he had a right to challenge the decree, by not doing so, and by attempting to execute the same, he will be O.P.(C).783/2013.
9deemed to have waived his right. Learned counsel therefore contended that the Original Petition is only to be dismissed.
11. It is not in dispute that the plaintiff in O.S. 307 of 1997 and the petitioner herein are neighbours. It was with respect to their property that the boundary was sought to be laid in O.S. 307 of 1997. As already mentioned, the plaintiff in O.S. 307 of 1997 was represented by his power of attorney holder who laid the suit. True, a compromise was entered into between the parties after the death of the plaintiff in the suit and the compromise was signed by the power of attorney holder of the plaintiff. However, it would appear from the records that the factum of the death of the plaintiff was not brought to the notice of the court nor was it recorded. The parties filed the compromise petition before the court and prayed that the court may accept the compromise entered into between the parties and a decree may be passed in terms of the compromise. By judgment dated 31.3.2000 the trial O.P.(C).783/2013.
10court accepted the terms of compromise and passed a decree accordingly. The terms of the compromise read as follows:
"x^<_ UcUXmE5Z
1) %Hc^O IG_5UXqaU_fa fDAaUV" %D_VJ_ y` XVgU dI5^x" H_Vm:O_:n_x_AaK %D_VJ_ 'xa5f_5{a" XND_:n_x_AaKa.
2) %{Ua 5N`WX y_gM^VG_f\ XVgU Io^H_W
5^C_:n_GaU y` XVgU %D_VJ_O_W
(H_\U_\aU y` XVgU 5\oa5Z) dID_5{af?
:_\U_W :axaB_ODm 2xa %x %?_ )OxJ_W
ND_W f5G_ D_x_AaKD_Ha 'xa5f_5{a"
XND_:n_x_AaKa.
3) gNW IyEdI5^x" %D_VJ_ ND_W f5G_
D_x_AaU^X NbKm N^X" XNO" H_Vm:O_:n_GaUDa"
?_ XNOJ_HaU_W dID_5{af? ND_W f5GaK g<^\_ IbVJ_O^A^fNKm XND_:n_GaUDaN^5aKa.
4) gN\_W 'xa55W_5{a" %Hc^OIG_5UXqaU_fa fDAaUV" %D_VJ_fO X"Lt_:nm O^fD^xaU_G DVABZ )KO_AaU^X I^?_\o^JDa" /fD^xa 5f_Oa" %D_VJ_ HV_M_Aa5gO^ IG_5UXqa 5gOnya5O_\o^fOKa XND_:n_GaUD^5aKa."
12. O.S. 158 of 2008 was filed by the siblings of the petitioner herein wherein the petitioner was shown as the O.P.(C).783/2013.
11first defendant. The challenge in O.S. 158 of 2008 was that the compromise decree passed in O.S. 307 of 1997 was obtained by fraud, misrepresentation and collusion. The petitioner herein who was the first defendant did not contest. O.S. 158 of 2008 was dismissed on the ground that the plaintiff therein had no subsisting interest over the suit property. It is significant to notice that there was no finding in the said suit that the decree in O.S. 307 of 1997 was null and void due to the fact that it was passed in favour of a dead person. In E.P. 40 of 2009 filed by the respondents herein for execution of the compromise decree, judgment debtors 2 and 3 had filed E.A. 107 of 2009 challenging the executability of the decree. The executing court found the decree to be executable. That was challenged in W.P.(C) No. 35858 of 2009 on the ground of fraud and collusion which was disposed of by this Court by judgment dated 14.12.2009. But at the time of hearing, learned counsel appearing for the petitioner in the O.P.(C).783/2013.
12said Original Petition conceded that the challenge against the validity of the decree can be raised only before the court which passed the decree and their right to do so may be reserved. Reserving the right of the petitioners to move appropriate court to get the compromise decree set aside, the Original Petition was disposed of. What is significant is that there was no contention in the said Original Petition that the decree was null and void as it was in favour of a dead person or that the compromise signed by the power of attorney holder of the plaintiff had ceased to hold authority consequent on the death of the plaintiff in the suit.
13. The question that arises for consideration is whether the decree passed in favour of a dead person is null and void or is only voidable.
14. The executing court held that there was no case for the judgment debtor that the compromise in O.S. 307 of 1997 was entered into on the basis of a misrepresentation by O.P.(C).783/2013.
13the plaintiff in the suit. The court below also took the view that being neighbours, it could not be believed that the present judgment debtor was not aware of the death of the plaintiff in O.S. 307 of 1997. Still with open eyes the defendants in O.S. 307 of 1997 entered into a compromise and suffered a decree. The court below also noticed that not only did they suffer a decree, they also took out execution as per E.P. 28 of 2007. The court then observed that later the decree was challenged in O.S.158 of 2008 on the ground of fraud, misrepresentation and collusion and not on the ground that the decree was in favour of a dead person. Accordingly, the court below went on to hold that the contention that the person who entered into the compromise had no authority cannot be accepted. Ultimately, the executing court held that execution with reference to the mandatory portion of the decree was barred by limitation and allowed execution regarding the rest of the decree.
O.P.(C).783/2013.
14
15. Coming to the decisions relied on by the learned counsel for the petitioner, i.e., Vareed jacob v. Jayakumar (2010 (3) K.L.T. 389), it was held as follows:
"There is no valid appeal when the appeal has been filed against a dead person as the sole respondent. Correcting the cause title and impleading of the legal representatives of the respondent (dead), where the dead person alone was arrayed as a respondent, can be permitted only if the appeal as against such legal representatives as on the date of the application for impleadment has not been barred. It must be remembered that insofar as the legal representatives of the dead respondent shown in the appeal are concerned, condonation of delay has to be pleaded and proved showing sufficient cause thereof till the date of filing of the appeal against them, and not with respect to the presentation of the appeal against the dead person. The application for impleading his legal representatives were moved on 24.2.2006. Not even a petition was filed to condone the delay impleading the legal representatives of the sole respondent. Objections raised by them against their impleadment as barred by time were not considered by the Appellate Authority. In short, the O.P.(C).783/2013.15
impleadment of the legal representatives of the first respondent, without condoning the delay in entertaining a time barred appeal against them, was patently illegal and unsustainable under law."
16. In the decision reported in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (AIR 1970 SC 1475), it was held as follows:
"7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity O.P.(C).783/2013.16
of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti, (AIR 1933 PC 61) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction."
17. In the decision reported in Amba Bai v. Gopal ((2001) 5 SCC 570) it was held as follows:
"As the judgment in the second appeal was passed without the knowledge that the appellant had dies, the same being a judgment passed against a dead person is a nullity. When R died during pendency of the second appeal, his legal representatives could have taken steps to get themselves impleaded in the second appeal proceedings and as it was not done, the second appeal should be taken to have abated by operation of law. When the second appeal had abated and the legal representatives of the appellant were not brought on O.P.(C).783/2013.17
record, the decree which was passed by the first appellate court, would acquire finality. By virtue of the order passed by the first appellate court, the plaintiff's suit for specific performance was decreed. Failure on the part of the legal heirs of R to get themselves impleaded in the second appeal and pursue the matter further shall not adversely affect the plaintiff decree-holder as it would be against the mandate of Rule 9 Order 22 of the Code of Civil Procedure."
18. The proposition laid down in the above decisions cannot be doubted. But how far they can apply to the facts of this case will be seen a little later. One fact may at once be noticed that none of the decisions dealt with a case of judgment and decree passed in favour of a dead person.
19. As rightly noticed by the court below, the plaintiff in O.S. 307 of 1997 died on 31.12.1999 and the compromise was entered into on 29.3.2000. It is true that on the death of the plaintiff in the suit, the authority given by him to the power of attorney ceased to exist. Therefore, it could be said that the power of attorney holder could no longer O.P.(C).783/2013.
18represent the plaintiff in the suit. But it is significant to note that having fully aware of the death of the plaintiff, the defendants in the suit chose to enter into a compromise with the power of attorney holder accepting his authority to do so and a compromise was drawn up as per the terms agreed to by the parties. That ultimately resulted in Ext.P3 decree dated 31.3.2000. One fact needs to be noticed here. At the time when the judgment was passed accepting the compromise, the suit had not abated.
20. Before going further, one aspect needs to be referred to. The contention raised by the learned counsel for the respondents based on Order 12 Rule 6 of Code of Civil Procedure though may be attractive, it may not have much relevance in the context of this case. It is no doubt true that the compromise decree was passed in terms of the agreement entered into between the power of attorney holder on behalf of a dead person and the defendants. But that by itself is O.P.(C).783/2013.
19sufficient to invalidate the decree is a different question.
21. The question as to whether a decree or a judgment in favour of a dead person is null and void was considered in the decisions reported in Goda Coopooramier's case (supra) and Abdul Azeez Sahib's case (supra), Noai Chokidar v. Official Trustee of Bengal (AIR 1929 Calcutta 527), Vantaku Appalanaidu v. Pedeinti Demudamma (AIR 1982 Andhra Pradesh 281) and Land Acquisition Collector v. Wazir Singh (AIR 1968 Punjab 68) and in N. Krishnaswamy Reddiar v. Manickavasagam ((1995) 1 MLJ 381).
22. Considerable amount of help is available from American Jurisprudence and Corpus Juris Secondum and also from the decisions in Mabel R. Noyes v. Bankers Indemnity Insurance Company (307 Mass. 567) , State of Punjab v. Nathu Ram (AIR 1962 SC 89), N. Jayaram Reddi v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool (AIR 1979 SC 1393).
O.P.(C).783/2013.
20
23. In the decision reported in Auralia Liuzza v. Aubrey Bell (40 Cal.App. 417), it was held as follows:
"Is judgment "B" enforceable against defendant administrator? Appellant contends that it was neither against the deceased Elimie Brinkerhoff nor against him as administrator of her estate; that the action to set aside the fraudulent conveyance abated upon the death of Mr. Brinkerhoff and that the court lacked jurisdiction over the parties and the subject matter. While Emilie Brinkerhoff was one of the defendants in the action resulting in judgment "B" , she died prior to trial and there was no substitution or appointment of a representative of her estate, prior to the rendition of judgment, was there any attempt to file letters of administration of her estate. Judgment "B" was entered against Dorothy Bell only, daughter of Mrs. Brinkerhoff. Appellant relied principally upon Estate of Parsell, supra, holding, at page 456 that "A judgment rendered for or against a dead person is void." The judgment was not rendered against a dead person. Ovberell v. Overell is also cited o the effect that a judgment cannot be given against one who is not a party to the action. Emilie Brinkerhoff, however, was a party to the action O.P.(C).783/2013.21
notwithstanding her death before the entry of the judgment. De Leonis v. Walsh, comes a little nearer upholding appellant's contention. In that case, the plaintiff brought an action to recover certain money received by defendant as her agent, and to compel him to reconvey to her certain real property alleged to have been conveyed to him upon his false representations. Only one defendant was named in the complaint. Prior to the time the case was submitted for decision, defendant died. On appeal, the court said that the trial court "could regularly take no action in the case until there was a substitution of some one to defend the action." The death of the only defendant necessitated a substitution of party.
Second practice dictates that if one or more of the parties to an action die, the legal representatives of their estates shall be substituted. It is not always necessary, however, to include all parties to a transaction as defendants. In California, while there must be a defendant competent to defend, and one against whom a judgment may be rendered, in the matter of a fraudulent conveyance the grantee or his representative must be a party at the time of the rendition of the judgment, but the fraudulent grantor who has reserved O.P.(C).783/2013.22
no interest, legal or equitable, although a proper, is not a necessary party to the action set it aside. The reason is that the conveyance is binding as to the grantor and is not affected by his death. In a suit wherein a creditor seeks to set aside a fraudulent conveyance, if the grantor is not a necessary party, neither is the legal representative of the grantor's estate, unless there should be other creditors. Under the circumstances of the instant case, the record not disclosing other creditors, a judgment rendered in the absence of the administrator as a party defendant is not void on its face. The court had jurisdiction over the parties and over the subject matter. The judgment has become final, and, as relates to the fraudulent conveyance and lien, may not be attacked collaterally. Seeming to be in conflict with the last statement is the holding in Pioneer Land Co. v. Maddux.
The decision in the Maddux case is predicated upon Texas and Mississippi decisions, also an excerpt from section16 of Mr. Van Fleet's work on "Collateral Attack", and involves the question of a necessary party to an action not having been properly served. The first appeal was from an order denying a motion to vacate a judgment in the case of People v. Goodhue. Pioneer O.P.(C).783/2013.23
Land Co v. Maddux, supra, was a direct appeal upon the merits of the entire controversy in an action to quiet title instituted subsequent to the decision in People v. Goodjue, supra. In the Maddux case, at page 642, the court said: "In order to make a judgment void collaterally; either 1. A legal organization of the tribunal; or 2. Jurisdiction over the subject matter; or 3. Jurisdiction over the person must be wanting; or 4. One or more of these matters must have been lost after it once existed. When either of these defects can be shown, the judgment and all rights and titles founded thereon are void."
24. In the decision reported in Goda Coopooramier v. Soondarammall (33 ILR Madras 167), the facts indicate that a decree was passed by the High Court on 8th September, 1891 in favour of the plaintiff in O.S. 186 of 1891, one Ramakkamall against Appukutty Chetti, the defendant in the suit. Subsequently, a suit was laid by the representative of Ramakkamall against the widow of Appukutti Chetti on the same cause of action for the very same relief. Evidence was O.P.(C).783/2013.
24adduced to show that the plaintiff in the earlier suit O.S. 186 of 1891 died in the morning of 8.9.1891 and the suit was taken up, heard and disposed of after her death. It was alleged in the subsequent suit that the decree is therefore a nullity and not a bar to the subsequent suit. Considering the issue, it was held at page 169 as follows:
"In America, " the great preponderance of authority is to the effect that, where the Court has acquired jurisdiction of the subject matter and the persons during the lifetime of a party, a judgment rendered against him after his death is, although erroneous and liable to be set aside, not void nor open to collateral attack." "Black on Judgments", section 200, page 294. At the case of a judgment for a deceased plaintiff, it is said, "cannot be distinguished in principle from that of a defendant dying while the action is pending, where, as already shown (section 200) the great preponderance of authority sustains the rule that the judgment is at least impervious to collateral attack and must be vacated or reversed by proper proceedings." Section 204, page 300. "
O.P.(C).783/2013.
25
25. In the decision in Abdul Azeez Sahib v.
Dhanabagiammal (AIR 1983 Madras 5) the facts show that one Abdul Sukkoor Sahib had instituted O.S. 712 of 1966 before the District Munsiff, Tindivanam for injunction against two defendants. The suit was dismissed. But in appeal the suit was decreed and the plaintiff was awarded costs. The plaintiff had died on 17.5.1971 and without impleading the legal heirs, the appeal was disposed of on 15.7.1971. The plaintiff's power agent filed execution petition for recovery of costs and an objection was raised that the decree passed in favour of a dead person is null and void and cannot be executed. Repelling the contention, in paragraph 3 and page 6 it was held as follows:
"3. The learned counsel for the petitioner relying on the two decisions reported in Himangshu Bhushan Kar v. Manindra Mohan Baha. AIR 1954 Cal. 205 and Raddulal Bhurmal v. Mahabirprasad Bisesar Kalwar, AIR 1959 Bom. 384, contended that a decree passed in favaour of a dead person is not a nullity, and the fact of O.P.(C).783/2013.26
death not brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making the decree void ab initio and the decree is executable. Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit as one without jurisdiction and the executing Court is not entitled to refuse to execute the decree on th ground that the plaintiff was not alive on the date when the decree was passed in is favour."
26. In the decision in Noai Chowkidar v. Official Trustee of Bengal (AIR 1929 Calcutta 527), it was held as follows:
"There is no doubt that an order passed against a dead person would be a nullity, but there are authorities showing that where an order was passed in favour of a O.P.(C).783/2013.27
dead person, it is not altogether and in all circumstances a nullity. In the case of Vellayan Chetty v. Jothi Mahalinga Aiyar, the practice in England on which our law is based is referred to. The learned Judges who decided that case in referring to the decision of Bowen, L.J., in Duke v. Davies stated as follows:
"The learned Lord Justice points out that if a party is dead, the records stand good so far as the living parties are concerned; and that any disposal of the case notwithstanding the death of one of the parties will be valid subject to its being vacated at the instance of the legal representatives of the person who had died."
27. In the decision in Land Acquisition Collector v. Wazir Singh (AIR 1968 Punjab 68), on facts the court had occasion to hold that the decree passed against a dead person is not null and void and the opposite party should have sought for correction if he was aggrieved by the same.
28. In the decision in Vantaku Appalanaidu v. Pedeinti Demudamma (AIR 1982 Andhra Pradesh 281) in a suit for partition between A and B, the suit was dismissed by the O.P.(C).783/2013.
28District Munsiff. While the appeal was pending, A, the plaintiff, died. Without knowing the death of A, the appellate court allowed the appeal and the lower court in turn passed a preliminary decree. Later the legal representatives of A filed a petition for passing the final decree. It was objected to on the ground that preliminary decree was passed against a dead person. Overruling the objection, it was held that final decree application is maintainable.
29. In the decision reported in N. Krishnaswamy Reddiar v. Manickavasagam ((1995) 1 MLJ 381), it was held as follows:
"1. The first review petition Krishnasamy Reddiar along with his brother deceased Ramaswamy Reddiar filed O.S. No. 22 of 1982 against the present respondent Manickavasagam in the Court of District Munsiff of Musiri and obtained a decree ex parte on 112.1986, Ramaswamy Reddiar died on 4.6.1985 prior to the decree. In E.P. No. 236 of 1988 the first review petitioner sought to execute the decree. Subsequently he filed E.A. No. 943 of 1988 under Order 21, Rule 16 O.P.(C).783/2013.29
and Section 151 C.P.C. For impleading present review petitioners 2 and 3 who are wife and daughter of Ramaswamy Reddiar L.Rs. Of the said Ramaswamy Reddiar in the abovesaid E.P. On 17.11.1993 learned District Munsiff allowed the application. The respondent herein challenged the same before this Court in C.R.P. No. 148 of 1994. Learned single Judge in his order dated 17.2.1994 allowed the C.R.P. And set aside the order in E.A. No. 943 of 1988 and dismissed that application for impleading the present petitioners 2 and 3 as L.Rs. Of deceased Ramaswamy Reddiar. The order in E.A. No.943 of 1988 was set aside on the sole ground that admittedly at the time of passing of the decree Ramaswamy Reddiar was not alive. The order of the court below is not according to law in impleading his legal representatives subsequently.
2. In this application decree-holder Krishnaswamy Reddiar and the legal representatives of Ramaswamy Reddiar seek review of the order of learned single Judge dated 17.2.1994. Learned Counsel for the petitioners submits that while a decree passed against a dead person is ab initio void, a decree passed in favour of a dead person is a nullity. Such a decree can utmost be an irregularity only. A decree awarded without the O.P.(C).783/2013.30
knowledge of the death of the plaintiff can be executed by his legal representatives. Besides, in this case there is another plaintiff Krishnaswamy Reddiar ane ven in the absence of legal representative of deceased Ramaswamy Reddiar a decree is a valid one. So, the impugned order of learned single Judge suffers from an error apparent on the face of the record."
3. In support of his claim learned counsel for the review applicants relied on Abdul Azeez v. Dhanabagiammal, wherein a Single Judge of this Court has held that it is not open to the executing court to refuse execution of the decree on the ground that the decree has been passed in favour of a dead person. As the decree passed in ignorance of the death of the plaintiff is a mere irregularity, it cannot have the effect of making the decree as one without jurisdiction. Learned Counsel for the respondent has not brought any authority to my notice which has taken a contrary view. I respectfully agree with the above said view of the learned Single Judge and hold that a decree passed in favour of a dead person is not a nullity and the fact of death, being not brought to the notice of the court when it passed the decree is only an irregularity: and it cannot have the effect of making the decree void ab initio and O.P.(C).783/2013.
31
the decree is executable. Where the Court proceeded with the case in ignorance of the fact of death of a person and passed a decree, that decree cannot be treated as a mere nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking a decree passed in favour of a dead person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit a one without jurisdiction and the executing Court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour. Order 21, Rule 16 read with Secton146, C.P.C. Enable the legal representatives of deceased decree holder Ramasamy Reddiar to come on record and apply for execution of the decree and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree holder. So allowing C.R.P. No. 148 of 1994 on the sole ground that Ramaswamy Reddiar was not alive on the date of decree is an error of law on the face of the record." O.P.(C).783/2013.
32
30. In Corpus Juris Secondum, Vol.50 at page 66, it is observed as follows:
"514. - Death of party before judgments A judgment rendered for or against a party after his death generally is not subject to a collateral attack, except where the action was commenced after the party had died.
Ordinarily, where jurisdiction of the parties to an action has duly attached, the fact that one of them died before the rendition of the judgment for or against him does not make the judgment absolutely void, as discussed supra $ 30, and, therefore, it is not open to impeachment in a collateral proceeding. According to some decisions, however, a judgment rendered under such circumstances is absolutely void, as discussed supra $30,m and therefore is subject to collateral attack.
Even where the party was dead before the institution of the suit, it has been held that this does not make the judgment a mere nullity, within the meaning of the rule against collateral impeachment, but it generally has been held that a judgment rendered in an action begun after the death of defendant therein is null and void and may be attacked collaterally."
O.P.(C).783/2013.
33
31. The issue as to whether a judgment in favour of a dead person is dealt with in American Jurisprudence 2d at page 376 - Note 91 as follows:
"91. Generally, The rule of the common law was that the death of the sole plaintiff or defendant abated a pending action, so that judgment could not thereafter be properly rendered. A judgment rendered after the death of a party is regarded in some cases as void, whether the deceased was the plaintiff or the defendant, even though the court acquired jurisdiction of the parties during their lifetime. The position is even taken by some courts that it makes no difference whether the fact of death does or does not appear on record. It has been said that these rules should be followed especially in cases in which the death occurs before any hearing on the merits and in which accordingly there is no foundation for an excuse that the failure to enter the judgment is attributable to delay on the part of the court."
32. In the decision in Mabel R. Noyes v. Bankers Indemnity Insurance Company (307 Mass. 567) , it was held as follows:
O.P.(C).783/2013.34
"A domestic judgment rendered by a court of common law jurisdiction is valid between the parties as long as it stands, and cannot be attacked collaterally. The reason for the rule has been said to be the existence of a remedy by writ or error in cases in which judgments have been erroneously entered, although there are instances where relief has been afforded in equity against the enforcement of a judgment obtained by fraud. Where the court has acquired jurisdiction of the subject matter and the parties, it may render a judgment for or against one of the parties after his death and, although such a judgment is erroneous and liable to be set aside, it is not void or open to collateral attack. To avoid the entry of a judgment liable to be reversed upon a writ of error, it has become the practice at common law and under the statute where, after a verdict or a finding has been made decisive of he rights of the parties, one of them dies pending a decision on some question of law, to enter the judgment nunc pro tunc as of a date before the death of the party."
33. It is useful to refer to the decision reported in State of Punjab v. Nathu Ram (AIR 1962 SC 89). The facts are as follows:
O.P.(C).783/2013.35
Government acquired on lease property belonging to Labhu Ram and Nathu for different military purposes.
Refusing the compensation awarded, the brothers applied under the provision of the relevant Act to the Punjab Government through the District Collector. Government referred the matter to an arbitrator who passed an award granting more than what was offered by the District Collector.
The Government challenged the order in High Court in appeal.
During the pendency of appeal, Labhu Ram, one of the two brothers died. High Court holding that appeal has abated dismissed the appeal. The matter was brought before the Apex Court.
34. The Apex Court after adverting to Order 22 and also the fact that as per the provision of C.P.C. Appeal abates as far as the dead person is concerned, went on to hold that it does not mean that appeal abates against all the co-respondents. In the said decision it was held as follows:
O.P.(C).783/2013.36
"The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when O. 22, R. 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal."
In that decision, it was also held as follows:
"6. The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made O.P.(C).783/2013.37
about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse form. Courts will not proceed with in appeal (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which 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, the ineffective, that is to say, it could not be success fully executed."
O.P.(C).783/2013.
38But the Apex Court was cautious to mention that the position may be different in case of joint and indivisible decree. In paragraph 7 it is observed as follows:
"7. There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them."
35. Almost a similar question was considered in the decision reported in N. Jayaram Reddi v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool (AIR 1979 SC 1393) and it was held as follows:
"5. But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased O.P.(C).783/2013.39
respondent, there is no justification for Mr. Sen's further argument that the High Court's decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative cannot be condemned unheard. So if a respondent to an appeal dies, and the appeal abates because of the failure his legal representative on the record within the time limited by law, and the appellate court loses sight of that development or ignores it, will still be permissible for the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for condonation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. The law has therefore provided, and accepted, modes for reopening and hearing the appeal O.P.(C).783/2013.40
in such cases.
6. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while that law treats such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality.It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely,during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection O.P.(C).783/2013.41
and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will enure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone."
Adverting to the basic principle underlying Order 22 Rules 3 and 4 and noting that the intention behind those provisions is O.P.(C).783/2013.
42one of audi aletram partem and observed as follows:
"27. This question may be examined first on principle. The basic principle underlying Order 22, Rules 3 and 4 which on account of the provision contained in Order 22, Rule 11 apply to appeals, in indisputably a facet of natural justice or a limb of audi alteram partem rule. It is a fundamental rule of natural justice that a man has a right to be heardaudi alteram partem-where a decision affecting him or his interest is to be recorded. It hurts one's sense of justice, fairness and reasons that a decision one way or the other is recorded affecting a party without giving that party an opportunity of being heard. This rule embraces the whole notion of fair procedure and the rule requiring a hearing is of almost universal validity. It has made a serious inroad in administrative decisions. It should enjoy a top place in a judicial proceedings.
28. The first limb of this rule audi alteram partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the O.P.(C).783/2013.43
deceased party should be brought on record which only meanse that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard. Order 22, Rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice."
Finally, in paragraphs 40 and 41 it is held as follows:
"40. The following conclusions emerge from these decisions:
(1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate.
(2) If the legal representative is on record in a different capacity, the failure to describe him also in his other O.P.(C).783/2013.44
capacity as legal representative of the deceased party would not abate the proceeding.
(3) If an appeal and cross-objections in the appeal arising from a decree are before the appellate court and the respondent dies, substitution of his legal representatives in the cross-objections being part of the same record, would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would not have the effect of abating the appeal but not vice versa. (4) A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would ensure for the subsequent stages of the suit on the footing that appeal is a continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit.
(5) In cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the death of a party if his legal representatives are impleaded in one appeal it will not enure for the benefit of cross-appeal and the same would abate.
41. Is it possible to ratiocinate these decisions? Apparently the task is difficult. Now, if the object and O.P.(C).783/2013.
45
purpose behind enacting Order 22, Rules 3 and 4 are kept in forefront conclusions Nos. 1 to 4 would more or less fall in line with the object and purpose, namely, no decision can be recorded in a judicial proceeding concerning the interests of a party to a proceeding without giving such party or his legal representatives an opportunity of putting forth its/their case.To translate this principle into action denuding it of its ultra technical or harsh application, the Courts held that if some legal representatives are before the Court, or they are before the Court in another capacity or are brought on record at some stage of the suit, the action will not abate even if there is no strict compliance with the requirements of Rules 3 and 4. The distinction in the process drawn between the substitution of legal representatives in cross-objections and cross-appeal defies ratiocinatio. Cross-appeal and cross-objections provide two different remedies for the same purpose and that is why under Order 41, Rule 22, cross-objections can be preferred in respect of such points on which that party could have preferred an appeal. If such be the position of cross- objections and cross-appeal a differentiation in the matter of their treatment under Rules 3 and 4 cannot be justified merely on the ground that in case of cross- O.P.(C).783/2013.
46
objections they form part of the same record while cross-appeals are two independent proceedings."
36. On a reading of the above decisions and literature on the subject, it becomes clear that while a decree passed against a dead person is generally treated as nullity (though not invariably in all cases), the position is different in a case where a decree is passed in favour of a dead person. Decisions are consistent in holding that in the latter case the passing of such a decree is only an irregularity and not an illegality. A collateral attack on the basis of such a decree has no sanction of law. It binds the parties and continues to exist in law unless got rid of as per law. Such a decree cannot be ignored as if it is void or is a nullity.
37. The contention therefore that the decree in O.S. 307 of 1997 is null and void cannot be accepted. It is at best only voidable. The legal heirs plaintiff can elect to stand by those decisions. The effect of abatement is that the legal heir O.P.(C).783/2013.
47cannot bring a fresh suit on same cause of action. The decree could not be treated as null and void. It could be said to be a voidable decree in which case, the decree had to be get rid of by the process known to law. There is no attempt from the side of the petitioner herein to get the decree set aside.
38. In the decision reported in N. Jayaram Reddi v. The Revenue Divisional officer and Land Acquisition Officer (AIR 1979 SC 1393), it is significant to notice that decree against a dead person was treated as null and void quo the legal representatives. The decision also holds that it is open to the legal representative to accept the decree. According to the decision, there is no law preventing that course being adopted.
39. One aspect needs to be noticed. There is an ocean of difference between a case where judgment is passed against or in favour of a dead person who was alive at the time when the lis commenced and a judgment passed against O.P.(C).783/2013.
48or in favour of a person who was dead on the date on which the lis commenced. In the latter case, the court had no jurisdiction on the dead person. If there is instant want of jurisdiction over person or subject matter of lis or if the court loose its jurisdiction over either during the pendency of lis the judgment is treated as void and treated as void collaterally also.
40. In the light of the above discussion, the conduct of the petitioner assumes importance. Not only did he not challenge the decree, but he sought execution of the same also. One cannot omit to take note of Ext.R2(a) in this regard. That is a letter alleged to have been written by the judgment debtor to the first respondent herein. That is dated 9.1.2007. He refers to O.S. 307 of 1997 and the compromise entered into between him and Narayanan, the husband of the first respondent herein who was the plaintiff in the suit. The petitioner herein has expressed his readiness to comply with O.P.(C).783/2013.
49the terms of the decree. But he sought for some more time. Thereafter, he instituted E.P. 28 of 2007 for execution of the decree. In the said proceedings, a commission was taken out and the Commissioner filed a report and sketch which had no comparison with the report and sketch prepared by the Commissioner at the trial side. The E.P. happened to be dismissed as not pressed. Having thus accepted the decree and acted thereupon, the petitioner now says that the decree is null and void and cannot be executed. He is precluded from saying so by the principles of estoppal, waiver election and acquiescence.
41. Sarkar on Evidence - 14th Edition - at page 1690, it is mentioned as follows:
"Spencer Bower and Turner writes "Any judgment or order which in other respects answers to the description of a res judicata is none the less so because it was made in pursuance of the consent and agreement of parties. It is true that, in such cases the court is discharged from the duty of investigating, or (where the O.P.(C).783/2013.50
consent is given at a late stage in the proceedings) further investigating, or the matters in controversy, and is not asked to, and does not, pronounce a judicial opinion upon any of such matters; but it is none the less true also that, at the joint request of the parties, the tribunal gives judicial sanction and coercive authority to what those parties have settled between themselves, and in that way converts a mere agreement into a judicial decision on which a plea of res judicata may be founded."
"The test for determining whether there is any estoppel in consequence of a compromise decree must depend upon the answer to the question : "Did the parties decide for themselves the particular matter in dispute by the compromise and was the matter expressly embodied in the decree passed or was it necessarily involved in, or was the basis of, what was embodied in the decree?"
42. In Halsbury's Laws of England- Fourth Edition Reissue Volume at page 489, it is observed as follows:
"Parties to litigation who have continued the proceedings with knowledge of an irregularity of which O.P.(C).783/2013.51
they might have availed themselves are estopped from afterwards setting it up, and on a somewhat different principle, such a party cannot take advantage of an error to which he has himself contributed. Where, however, an objection to the jurisdiction of an inferior court appears on the face of the proceedings, a party who consented to the exercise of the jurisdiction is not thereby estopped from afterwards raising the objection, since the jurisdiction of a court of limited jurisdiction cannot be enlarged by estoppel."
43. The doctrine of election, estoppel and waiver share a common foundation in a simple instinct of fairness, and in particular the perception that as between two parties to a transaction of a legal relationship, it is or may be unfair for one party to adopt inconsistent positions in his dealings with the other. Election though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. (See the decision reported in (1999) 2 All.E.R. 791) O.P.(C).783/2013.
52
44. While estoppel is based on representation or conduct, election is based on the principle of conscious choice from inconsistent right and waiver is a conduct whereby a person consciously gives up an available known right. Waiver is not a precise term of an art and is sometimes considered as an effect of election. Waiver is usually used in a wider sense as a deliberate decision by a party not to stand on his strict rights.
45. Of course, the petitioner could have challenged the decree in appropriate proceedings. He chose not to do so. On the other hand, he elected to stand by the decree and waived his right to get a declaration that the decree is invalid in law. It may be remembered here that as per the decisions referred to above, the judgment and decree passed in favour of a dead person is only voidable and if that be so, it has to be avoided through process known to law. The petitioner O.P.(C).783/2013.
53however chose not to avail of such an opportunity and instead he sought to execute the decree thereby indicating that he stands by the terms of the decree and was willing to be bound by the terms of the decree.
46. Thus, it could be seen that the contention that a decree passed in favour of a dead person is a nullity is not legally acceptable. It is only voidable and if that be so, the decree is to be avoided through known process of law. So also the contention that the power of attorney holder had no authority to enter into a compromise is also devoid of merit for, the respondent entered into a compromise fully aware of the facts and circumstances. He had chosen to act on the basis of the decree also. He never attacked the decree on that ground also. The petitioner, having not done so, is bound by the terms of the decree and the court below was justified in passing the impugned order.
O.P.(C).783/2013.
54
This Original Petition is without merits and it is accordingly dismissed. However, there will be no order as to costs.
P. BHAVADASAN, JUDGE sb.