1. One of the legal Representatives of the deceased Plaintiff who has obtained a decree for costs against the defendants has filed this civil revision petition. The defendants and the other legal representatives of the deceased decree holder are the respondents.
2. One Abdul Sukkoor Sahib filed a suit in O.S. No. 712 of 1966 on the file of the District Munsif, Tindivanam, for injuction against the two defendants (Respondents 1 and 15 herein) restraining them from interfering with plaintiff's possession and enjoyment of the suit properties. The suit was dismissed, and on appeal. The suit was decreed and the plaintiff w as awarded costs. The plaintiff died on 17-5-1971. Without impleading his legal representatives, the appeal was disposed of on 15-7-1971. The plaintiff's power agent filed an execution petition for recovery of costs and the petition was dismissed since batta was not paid. A second execution petition was filed by the power agent of the legal heirs of the plaintiff were added as parties and they are the petitioner and respondents 2 to 14 herein.
In E.A. No. 805 of 1973, the power agent of the legal heirs of the deceased plaintiff was permitted to prosecute the decree. An objection was raised that as the plaintiff was not alive when the appellate Court passed the decree on 15-7-1971. The decree is void and is not executable. The executing Court held that in E.A. 804 of 1973 the legal representatives of the deceased plaintiff were added as parties with consent of the defendants, and it is not open to the defendants to contend that the decree is not executable. On appeal, the lower appellate Court held that since the decree came to be passed in favour of the deceased plaintiff, it is void abinitio and is not executable and as such, the execution petition is not maintainable. Against this order of the lower appellate court. One of the legal representatives of the deceased plaintiff has filed the civil revision petition. 3. The learned counsel for the petitioner relying on the two decisions reported in Himangshu Bhusan Kar V. Manindra Mohan Baha. : AIR1954Cal205 and Raddulal Bhurmal v.Mahabirprasad Bisesar Kalwar, : AIR1959Bom384 , contended that a decree passed in favour of a dead person is not a nullity, and the fact of 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 abinittio and the decree is executable. Where the Court proceeds with the case in ignorance of the fact of death of 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 make the decree passed in the suit as one without jurisdiction and 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.
In the instant case, as the defendants have not chosen to challenge the decree either by way of appeal, revision or review, or to have it set aside in the suit itself by appropriate proceedings, 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 and cannot have the effect of making the decree as one without jurisdiction, the lower appellate Court's finding that the decree is void abinitio is clearly erroneous.
4. In the result, the civil revision petition is allowed and the order of the lower appellate Court is set aside and t hat of the executing Court is restored. Parties to bear their own costs.