V SOMASUNDARAM Vs. S THIRUPURASUNDARI

JUDGEMENT

(1.) DEFENDANT in O. S. No. 146 of 1979 on the file of this Court is the appellant, and plaintiffs 2 to 8 are the respondents herein. First plaintiff died during the pendency of the suit, and his legal representatives have come on record as plaintiffs 2 to 8.

(2.) THIS appeal is preferred against an order dated 24. 4. 1987 passed in Application No. 821 of 1987 confirming the order dated 18. 2. 1987 passed by the Master in Application No. 4389 of 1986 in E. P. No. 80 of 1985 in C. S. No. 146 of 1979. Late Somasundaram filed the suit for recovery of a sum of Rs. 15,00,000 with interest against the defendants/appellant herein, and during the pendency of the suit, he died in October, 1981, and therefore, his widow, son and daughters have come on record as his legal representatives, and thereafter the suit was decreed on 30. 4. 1983, on merits. They filed E. P. Nos. 110 of 1983 and 80 of 1985, and the appellant paid Rs. 1,00,000. It is thereafter the appellant filed Application No. 4389 of 1986 to dismiss the execution petitions, on the ground that it is obligatory on the part of the decree-holders to file the Execution Petition along with Succession certificate, and having failed to file such a certificate, the decree itself being a nullity, it cannot be any longer executed.

(3.) A division bench in RADHA MOHAN v. Mrs. JANE HILT, a. I. R. 1945 All. 400, held that a decree passed without the requirements of sec. 214 cannot be a nullity, but no doubt the decree might have been set aside in appeal and it is just possible that a suit might have been instituted to set it aside, but that is quite a different thing from saying that the decree in such a suit is a nullity. The decree is analogous to one which is based on a wrong view of the law". The division bench relied upon the decision in abdul MAJID v. SHAMSHERALI FAKRUDDIN, I. L. R. (1940) Bom. 514: A. I. R. 1940 Bom. 285: 42 Bom. L. R. 521 (referred to above ).