KAVERI AMMA Vs. SARADHA

JUDGEMENT

(1.) The question that arises for decision in this appeal is whether the suit out of which this appeal has arisen has abated by the non impleading of the legal representatives of the fourth defendant who admittedly died pending proceedings in the trial court. Notwithstanding the death of the fourth defendant and despite the fact that his legal representatives were not brought on record, the trial court purported to pass a decree against the first and fourth defendants for redemption of the mortgage which was sought to be redeemed in the suit. This decree, the relevant portion of which is extracted below:

(2.) Further, the decree that has been passed in this case is joint and indivisible, the non-impleading of the legal representatives of the deceased defendant will result in total failure of the suit or appeal. The same result must follow though the court purported to pass a decree, as in this case, apparently without noticing that the fourth defendant had died.

(3.) I am not impressed by the argument of counsel for the respondent that the abatement, if any, in this case is only so far as the fourth defendant and his interest in the property is concerned and the decree can be executed against the first defendant. He pointed out that the prayer in the execution petition is only for recovery of such of the items as are in the possession of the first defendant and that the decree holder having thus limited the prayer in the execution petition, there is no impediment to that prayer being granted. I am unable to agree. The question as to whether the decree is capable of execution cannot depend on the wording of the prayers in the Execution Petition.