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M. Subramania Aiyar Vs. Vaithinatha Aiyar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1915)ILR38Mad682; 31Ind.Cas.198
AppellantM. Subramania Aiyar
RespondentVaithinatha Aiyar and anr.
Cases Referred and Imdad Ali v. Jagan Lal I.L.R.
Excerpt:
defendant, death of - legal representative not brought on record--decree subsequent to such death, validity of--objection to such decree in execution. - - but it deals with exceptional circumstances and the case of a plaintiff;.....against the petitioner's contention on this point, and, the decree under execution being null and void, proceedings to avoid it are unnecessary.3. it is argued next that the respondents could not take objection to the decree in execution proceedings. but their objection wag to the jurisdiction of the court to pass it, it was therefore rightly considered and allowed.4. lastly, it is argued that the present application to join the respondents as legal representatives of the deceased defendant and for execution should have been treated as one for the former relief and for setting aside the abatement and that the trial of the suit should have been resumed. it does not appear that this was suggested in the lower court; and in fact the defendant's death is referred to incorrectly as in the.....
Judgment:

1. It is admitted that the decree under execution was passed after the death of the defendant and before his legal representatives were impleaded. It is argued firstly that this did not effect its validity, and secondly that the decree passed is not void but must be set aside in separate proceedings for that purpose, before it can be treated as a nullity.

2. Goda Coopooramier v. Soondrammal I.L.R., (1910) Mad., 167 is relied on. But it deals with exceptional circumstances and the case of a plaintiff; and it is not clear that the decision would have been the same, if a decree against a defendant had been in question. On the other hand in Janardhan v. Ramchandra I.L.R., (1902) Bom., 317, Radha Prasad Singh v. Lal Sahab Rai I.L.R., (1891) All., 53, and Imdad Ali v. Jagan Lal I.L.R., (1895) All., 478, the two last mentioned cases relating to decrees against defendant, it was held that the decrees were nullities. Authority is therefore against the petitioner's contention on this point, and, the decree under execution being null and void, proceedings to avoid it are unnecessary.

3. It is argued next that the respondents could not take objection to the decree in execution proceedings. But their objection wag to the jurisdiction of the Court to pass it, It was therefore rightly considered and allowed.

4. Lastly, it is argued that the present application to join the respondents as legal representatives of the deceased defendant and for execution should have been treated as one for the former relief and for setting aside the abatement and that the trial of the suit should have been resumed. It does not appear that this was suggested in the Lower Court; and in fact the defendant's death is referred to incorrectly as in the petition as subsequent to the passing of the decree. For this reason and on its merits the suggestion is unacceptable.

5. The Civil Revision Petition is dismissed with costs.


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