MARY Vs. ZACHARIA AND CO LTD

JUDGEMENT

(1.) This appeal arises from and order in execution passed by the Additional District Judge of Kottayam in E. P. 16 of 1963 in O.S. 168 of 1952. The second additional defendant is the appellant before us. The decree in the case was passed on 31 3 1953 and the suit had been filed on 7-10-1952. The original defendant was one Eipe. The case of the additional defendants who were impleaded in the place of Eipe as his legal representatives was that Eipe was dead even before the date of the institution of the suit. It was alleged that on 1 5 1952 Eipe was seen taking a lorry to the plaintiff's estate, and thereafter he was not heard of. It is believed that he died on 27 6 1952 as a result of an accident. According to the additional defendants, therefore, the decree which was passed ex parte on 31 3 1953 is a nullity.

(2.) The learned Judge has held on the strength of the presumption envisaged in S.108 of the Evidence Act that Eipe must be presumed to be dead; but the exact date on which he died has to be gauged from the evidence to be adduced by the parties. He has also held that the burden of proving the exact date of Eipe's death lies on the additional defendants since "it is essential for the establishment of their claim that the decree is void''. It is this observation regarding the onus of proof that is challenged before us by the appellant. According to him the burden is on the decree holder to satisfy the court that Eipe was alive on the date of the passing of the decree because it is necessary for him, for the establishment of the right he claims, viz., the right to execute his decree.

(3.) It was held by the Privy Council in Lal Chand Marwari v. Mahant Ramrup Cir (AIR 1926 PC. 9) that: