KAMALAKARA VENKATA RAO Vs. POTHURI PAPA RAO

JUDGEMENT

(1.) Sri Rama Sarma, the learned counsel for the appellant, questions in this appeal the correctness of the decision of our iearned brother A.V. Krishna Rao, J., in C.M.A.No. 220/1973 setting aside the order of the Subordinate Judge, Gudiwada in E.P.No. 45/1972 in O S.No. 25 of 1967.

(2.) The plaintiffs obtained mortgage decree in O.S.No. 25 of 1967 on the file of the Subordinate Judge, Gudiwada. The Learned Subordinate Judge passed preliminary decree on 12-11-69 against the defendants 1, 2, 4, 5 and 12 to 14. On 29-10-70 the 2nd defendant died. His legal representatives were not brought on record as the plaintiff did not know about the death of the 2nd defendant by then. A final decree was passed against the above mentioned defendants on 22-11-71. After obtaining the final decree, the plaintiffs filed E.P.No. 45/1972 for sale of the charged properties. Notices were sent to all the judgment-debtors who are defendants 1 to 6 and 11 to 14. The notice issued to the 2nd defendant was returned with an endorsement that he died. The decree holders, therefore, filed a petition for impleading the legal representatives of the 2nd defendant who are judgment-debtors 15 to 17 in the Execution Petition. That petition was allowed. Then notices were issued to judgment-debtors 1, 4, 5, 12 to 14 and 15 to 17. All the judgment-debtors remained ex-parte. Hence the learned Subordinate Judge ordered sale proclamation and publication. It is this order that was assailed before the learned single Judge in C.M.A.No. 220/1973 on the grounds that a final decree against the 2nd defendant who was dead was a nullity in its entirety and it cannot be executed at al! not only against the legal representatives of the 2nd defendant, but against the other defendants also. As against this contention, the counsel appearing for decree holders submitted before the learned single Judge that the death of the 2nd defendant after passing of the final decree did not bring about any abaterrent, as Rules 3 and 4 of Order 22 have no application at all and as such the legal representatives of the deceased defendant need not be impleaded in the final decree and the final decree does not became a nullity even if it was passed against the Judgment-debtor who was dead. He also contended that the decree was a joint decree against the named defendants and it cannot become a nullity in its entirety and it can be executable against the other defendants even if it cannot be executed against the legal representatives of the deceased 2nd defendant.

(3.) The learned single Judge did not nccept the contention that a final decree can be passed against the deceased-defendant without impleading his legal representatives. He held that the Full Bench decision of the Madras High Court in Perumal Piliay v. S. Perutnal Chetty (1) I.L.R. 51 Mad. 701) on which the counsel for the decree-holders relies in support of his contention mention above does not lay down a proposition of law that a final decree could be passed without impleading the legal representatives of the deceased-defendant and it is not a nullity against a dead person, and what the Full Bench decision lays down is that irrespective of Rules 3 and 4 of Order 22 C. P. C. a person can move for the passing of the final decree against the legal representatives of the deceased as there will be no abatement of the suit consequent upon the death of one of the parties since after a preliminary decree once passed in the suit cannot be dismissed unless the decree is reversed on appeal and the said decision does not state that before a final decree is passed, the legal representatives of the deceased-defendant need not be brought on record. The learned single Judge also held that the decree being a joint decree, it is a nullity in its entirety, that is, not only against the deceased-defendant, but also against other defendants.