K.RAJAMANICKAM Vs. P.M.KANAGASABAPATHY

JUDGEMENT

(1.) Challenge has been made to the order passed by the Executing Court dismissing the application filed under Sec. 47 of the Code of Civil Procedure, the present revision has been filed.

(2.) The suit has been filed originally by the sole plaintiff as against the defendant in O.S.No.353 of 2004 for recovery of mortgage money. A preliminary decree was passed on 12/1/2007. As the amount has not been piad as directed in the preliminary decree, final decree has been passed on 8/6/2016 in I.A.No.1372 of 2007. To execute the said decree, execution petition has been filed by the legal heirs in R.E.P.No.132 of 2019. The decree has been challenged only on the ground that during the pendency of the final decree proceedings, the plaintiff has died on 27/10/2015, however, the final decree has been passed on 8/6/2016. Therefore, according to the plaintiff decree passed in favour of a dead person is not valid in the eye of law. Further, the respondents have not filed any documents to prove that they are the legal heirs of the deceased plaintiff. An application has been filed by the legal heirs under Sec. 50 of CPC and they have been recognised by the executing court which is not in accordance with law.

(3.) The said application has been opposed by the respondent by filing counter. The executing court clearly found that merely quoting wrong provisions of law in bringing the legal heirs will not vitiate the proceedings, the defects is curable and can be cured at any time. As far as the submission that decree in favour of the plaintiff is concerned, the Trial Court has clearly held that decree in favour of a dead person is not nullity as held by B.K.Basha vs. Mohamed Ali and others made in CRP.(NPD).No.771 of 2014 in MP.Nos.1 & 2 of 2014 dtd. 14/2/2018. Challenging the said order, the present revision has been filed.