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Sripat NaraIn Rai Vs. Tirbeni Misra - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All226(2); 45Ind.Cas.21
AppellantSripat NaraIn Rai
RespondentTirbeni Misra
Excerpt:
civil procedure code (act v of 1908) order xxi, rule 7, order xxii, rule 6 - execution--decree passed against deceased defendant, validity of--decree, whether can be executed. - - ) 632 that it is a good answer to an application for execution against the alleged representatives of a judgment-debtor to show that the judgment debtor was dead at the time the decree was made, and that such a decree is void and incapable of execution as against the person so dead. a good deal might be said for this contention particularly if the pre-emption money is accepted by the joint family, but we have not to decide this matter in the present appeal......the present application was for execution against the surviving defendants and also against the sons of bindeshri as his legal representatives. it was objected that bindeshri had died before the decree was made. having regard to the order of the court below and to what happened when this case was before us on a previous occasion, we intend to deal with the case on the assumption that bindeshri was dead at the time the decree was made against him. the lower appellate court has dismissed the application for execution as against the sons of bindeshri as his legal representatives. this court has held in the case of imdad aliv. jagan lal 17 a. 478; a.w.n. (1895) 109 : 8 ind. dec. (n.s.) 632 that it is a good answer to an application for execution against the alleged representatives of a.....
Judgment:

1. This appeal arises out of execution proceedings. It appears that a decree for pre-emption was obtained against three persons, one of whom was Bindeshri. It is alleged, and it is possibly correct, that all the three persons constituted a joint Hindu family. The question of jointness is not now before us. Bindeshri died and the present application was for execution against the surviving defendants and also against the sons of Bindeshri as his legal representatives. It was objected that Bindeshri had died before the decree was made. Having regard to the order of the Court below and to what happened when this case was before us on a previous occasion, we intend to deal with the case on the assumption that Bindeshri was dead at the time the decree was made against him. The lower Appellate Court has dismissed the application for execution as against the sons of Bindeshri as his legal representatives. This Court has held in the case of Imdad Aliv. Jagan Lal 17 A. 478; A.W.N. (1895) 109 : 8 Ind. Dec. (N.S.) 632 that it is a good answer to an application for execution against the alleged representatives of a judgment-debtor to show that the judgment debtor was dead at the time the decree was made, and that such a decree is void and incapable of execution as against the person so dead. This is an authority which we think we ought to follow, unless it can be shown that it is no longer law. It is contended that there has been a change in the new Code of Civil Procedure by the omission from Order XXI, Rule 7, of the word 'jurisdiction.' We think that this alteration in no way modifies the authority of the case to which we have referred. No question of 'jurisdiction' of the Court to make the decree arises because no Court can make a decree against a dead man; and a decree so made is a nullity. In this view we think the decision of the Court below was correct. It is suggested that as the family is joint it was sufficiently represented by the members of the family who were alive when the decree was made, and that it is unnecessary that the sons of Bindeshri should be named as judgment-debtors. A good deal might be said for this contention particularly if the pre-emption money is accepted by the joint family, but we have not to decide this matter in the present appeal. We express no opinion as to what the effect of the execution of the decree against the surviving defendants will be. But we think the Court below was justified in dismissing the application for the execution against the sons of Bindeshri as his legal representatives. The result is that the appeal fails and is dismissed with costs.


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