B.K. BASHA Vs. MOHAMED ALI

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order dated 30.10.2013 made in E.A.No.3675 of 2011 in E.P.No.1421 of 2008 in O.S.No.2859 of 2004 on the file of the IX Asst. Judge, City Civil Court, Chennai.

(2.) The petitioner is respondent in E.P.No.1428 of 2008. He is one of the legalheirs of the deceased defendant who is the first respondent in E.P. He has filed E.A.No.3675 of 2011 under Section 47 CPC contending that E.P. is not executable and nullity. According to the petitioner, the first respondent filed suit against his father as sole defendant for declaration of title and recovery of possession. The petitioner's father had filed written statement on 05.08.2004 and was contesting the suit. After the first respondent let in evidence and closed his side, the suit was posted for evidence on behalf of the sole defendant. The sole defendant took adjournments and subsequently, filed proof affidavit stating that he could not appear before the Court for marking the documents and for cross examination as he was bed ridden. Subsequently, he died on 29.02.2008. The judgment and decree was passed on 26.03.2008, after the death of the sole defendant without impleading the legalheirs of the sole defendant and the decree obtained by the first respondent is nullity and it is not executable.

(3.) Before the learned Judge, the petitioner examined himself as PW1 and marked two documents as Exs.P1 & P2. On behalf of the first respondent, one Mohamed Abdul Rashid was examined as RW1 and marked three documents as Exs.R1 to R3. The learned Judge, considering the affidavit of the petitioner, Order XXII Rules 1, 4 (4) and 10-A of CPC, dismissed the application holding that the application under Section 47 CPC is not maintainable and the remedy available to the petitioner is only by way of appeal.