Skip to content


Thakoor Ramachander Lalji Firm Carrid on by Trustees Dr. A.S. Pai and ors. Vs. M. Narasimhalu Chetty and Co. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in146Ind.Cas.564
AppellantThakoor Ramachander Lalji Firm Carrid on by Trustees Dr. A.S. Pai and ors.
RespondentM. Narasimhalu Chetty and Co.
Cases ReferredSudalalmuthu Pillai v. Sudalaimuthu Pillai
Excerpt:
civil procedure code (act v of 1908), sections 144, 151 - suit against dead person--execution of decree--inherent power of court to order restitution. - .....the decree was admittedly a nullity, the suit having been instituted against a dead man. the civil procedure rules are not applicable against dead persons as remarked in debi bakhsh singh v. habib shah 19 ind. cas. 526 : 35 a. 331 : 17 c.w.n. 829. 11 a.l.j. 625 : 18 c.l.j. 9 : 15 bom. l.r. 640 : 14 m.l.t. 33 : (1913) m.w.n. 566 : 25 m.l.j. 118 : 16 o.c. 194 : 40 i.a. 150 . the court having levied execution when there was no decree has inherent power to rectify its own mistake under section 151 of the code of civil procedure. vide also remarks in sudalalmuthu pillai v. sudalaimuthu pillai : air1925mad365 . i do not propose to go into the academic question whether the petitioners can get a decree, which is a nullity, set aside or not because the only real question is whether he can.....
Judgment:

Pakenham Walsh, J.

1. I see no reason why the court should refuse restitution. The decree was admittedly a nullity, the suit having been instituted against a dead man. The Civil Procedure rules are not applicable against dead persons as remarked in Debi Bakhsh Singh v. Habib Shah 19 Ind. Cas. 526 : 35 A. 331 : 17 C.W.N. 829. 11 A.L.J. 625 : 18 C.L.J. 9 : 15 Bom. L.R. 640 : 14 M.L.T. 33 : (1913) M.W.N. 566 : 25 M.L.J. 118 : 16 O.C. 194 : 40 I.A. 150 . The court having levied execution when there was no decree has inherent power to rectify its own mistake under Section 151 of the Code of Civil Procedure. Vide also remarks in Sudalalmuthu Pillai v. Sudalaimuthu Pillai : AIR1925Mad365 . I do not propose to go into the academic question whether the petitioners can get a decree, which is a nullity, set aside or not because the only real question is whether he can get restitution of money paid to execution of what was not a decree. I have no doubt that he can.

2. The order will be that the money wrongfully paid to the respondents by the petitioners must be refunded with interest at 6 per cent. (per annum) from date of collection, viz., January 21, 1928, till date of restitution.

3. Petitioners will be allowed costs of this petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //