Dismissed

Durai (Deceased) v. Thangavel

Madras HC16 Feb 2021CRP(MD)/427/2008

Case brief

AI extract

What is this about?

The Madras High Court dismissed a civil revision petition challenging the dismissal of an execution petition. The revision prayed for delivery of property, but the original suit involved a final decree passed against deceased persons without impleading their legal heirs. The High Court held that proceedings abate after 90 days without impleading heirs, rendering the decree a nullity and the execut

What did the court decide?

Civil Revision Petition dismissed; dismissal of revision will not bar appropriate proceedings in vires of law. No costs.

Durai (Deceased) Vs Thangavel — Execution and Attachment | Madras HC (2021)

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C.R.P.(NPD)(MD)No.427 of 2008

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 16.02.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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C.R.P.(NPD)(MD)No.427 of 2008 and M.P.(MD)No.1 of 2008

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Durai (deceased) 1. Chandran 2. Sulochana 3. Sasikala ... Petitioners 2to4/ Plaintiffs/Petitioners vs 1. Thangavel 2. Kaliyaperumal 3. Kesavan 4. R.Selvaraj (died) 5. R.Gunasekaran 6. R.Govindaraj (died) 7. S.Mohan 8. S.Kathiravan 9. S.Mathavan 10.Abirami (R7 to R10 are brought on record as legal representatives of the deceased 4^th respondent) 11. Saraswathi 12. G.Nandhini 13. G.Lavanya (R11 to R13 are brought on record as legal representatives of the deceased 6^th respondent) 14. Alice 15. Prasanna 16. Shantha 17. Vasantha 18. Prema ... Respondents (R14 to R18 were impleaded vide order dated 20.01.2021)

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Prayer : Civil Revision Petition filed under Section 115 of C.P.C., against the order dated 28.04.2006 made in E.P.No.53 of 2005 in O.S.No.1013 of 1982 on the file of the District Munsif Court, Thanjavur.

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For Petitioner : Mr.N.Sivakumar For Respondents : Mr.H.Lakshmi Shankar for R5, R7 to R13

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https://hcservices.ecourts.gov.in/hcservices/

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C.R.P.(NPD)(MD)No.427 of 2008

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ORDER

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This Civil Revision Petition is directed against the order dismissing an Execution Petition in E.P.No.53 of 2005. The said Execution Petition was filed by the petitioners herein, seeking delivery of the property allotted to them under a final decree passed in O.S.No.1013 of 1982.

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The said suit was laid by the first petitioner and predecessors in interest of the petitioners 2 and 3, seeking partition and separate possession of their 2/3^rd share in the suit property.

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The first defendant resisted the suit, claiming a share in the property. The respondents 5 and the predecessors in interest of respondents 7 to 13 remained ex parte in the suit. A preliminary decree came to be passed on 02.07.1990 declaring the share of the plaintiffs and the first defendant, as they are entitled to as per the sale deed. The first defendant also sought for dismissal of the suit while claiming his 1/3^rd share. An application for final decree was preferred some time in the year 1991 and the final decree came to be passed on 13.01.2004. The plaintiffs sought for execution of final decree in E.P.No.53 of 2005. The defendants 1 to 3 in the suit, who were shown as respondents 1 to 3, were given up. The other defendants, namely, respondents 4 to 6 appeared through counsel. The counter affidavit was filed by the 5^th respondent pointing out that the petitioner in the final decree application as well as the respondents 1 and 3 had died even during the pendency of the said application and therefore, the final decree itself is inexecutable. The Executing Court, on a consideration of the materials placed before it concluded that the final decree petition itself is abated on the death of the petitioner and respondents 1 to 3 and therefore, the final decree itself is nullity. On the said finding, it dismissed the execution petition. Aggrieved, the second plaintiff and the legal representative of the first plaintiff in the suit have come up with this Civil Revision Petition.

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A perusal of the final decree proceedings go to show that the fact that the petitioner as well as some of the respondents in the final decree petition had died, was not brought to the notice of this Court. Once a party to the proceedings dies, the legal heirs of the deceased should be added within 90 days. On the 91^st day of death, the proceedings abate automatically. Unless it is set aside in a manner known to law, no order can be passed in the application. No doubt, in similar cases, it has been held that a decree in favour of a dead person cannot be a nullity and the same can be avoided by his legal heirs. In the case on hand, it is seen from the records that some of the respondents in the final decree proceedings have also died and the legal representatives of the dead persons have not been brought on record. Therefore, the final decree passed is

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https://hcservices.ecourts.gov.in/hcservices/

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C.R.P.(NPD)(MD)No.427 of 2008

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against the dead persons also and the same is nullity. The Executing Court was right in concluding that the final decree is inexecutable.

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I do not see any ground to interfere with the order of the Executing Court passed in E.P.No.53 of 2005. The Civil Revision Petition, therefore, fails. Accordingly, it is dismissed. The dismissal of this revision will not stand in the way of the petitioners taking appropriate proceedings as may be open to them under the law. No costs. Consequently, connected miscellaneous petition is closed.

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Assistant Registrar (CS-II)

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// True Copy //

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/ /2021 Sub Assistant Registrar(CS)

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OGY

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The District Munsif Court, Thanjavur.

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+1 CC to Mr.H.LAKSHMI SHANKAR,Advocate (SR-5514[F] dated 17/02/2021) +1 CC to Mr.N.SIVAKUMAR, Advocate ( SR-5870[F] dated 18/02/2021 )

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Order made in C.R.P.(NPD)(MD)No.427 of 2008 16.02.2021

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ES(CO) SRS (12/03/2021) 3P : 4C

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https://hcservices.ecourts.gov.in/hcservices/

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Durai (Deceased) v. Thangavel

Case brief

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Durai (Deceased) v. Thangavel

Case brief

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