B. VENKATESAN Vs. S. PETER DEVADASS

JUDGEMENT

(1.) Challenge has been made to the Order dismissing the Execution Petition, the present Revision has been filed.

(2.) The Petitioner/Plaintiff has filed a Suit in O.S. No.6221 of 2021 on the file of XXIII Assistant Judge, City Civil Court, Chennai for recovery of money for a sum of Rs.8,90,000.00 together with Interest at the rate of 24% per annum. The Suit has been decreed ex parte on 18/11/2021. Execution Petition was filed in E.P. No.686 of 2022. Only in E.P. proceedings, Notices were ordered to Judgment-debtor and it came to the notice of the Court that the Judgment-debtor died on 15/10/2021, even before the Judgment and Decree passed against the Judgment-debtor. Thereafter, the Death Certificate is also produced by the Court Amin. Subsequently, an Application under Order 22, Rule 4 of C.P.C. was also filed by the Decree-holder for impleading the Legal Heirs of the deceased Judgment-debtor, though the Legal Heirs received Notice, they have not appeared before the Court and they were set ex parte. Further, the Executing Court found that as the Decree is passed against the deceased is not enforceable, accordingly, the E.P. No.686 of 2022 was dismissed on 24/8/2022. Challenging the dismissal, this Revision (filed).

(3.) The learned Counsel for the Petitioner would submit that the Decree passed in favour of a dead person is not a nullity and the fact of the death not brought to the notice of the Court, it is only an irregularity and it cannot have the effect of making the Decree void ab initio and the Decree is executable. Further, it is stated that when the Court proceeds with the case, ignorance of the fact of the death of person and passes a Decree, the Decree cannot be treated as nullity. Though it may be a wrong Decree, it has to be set aside only in Appeal, Revision or Review. Hence, seeks allowing of the Revision.