NUMALI GOGOI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The respondent-State Bank of India had filed Title Suit No.20 of 1989 for recovery of Rs.2,58,276.03P with interest against (1) M/s Sonti Saw Mill; (2) Sri Khogendra Nath Chetia, the principal borrower; and (3) Bidyadhar Gogoi as guarantor of the aforesaid two borrowers-defendants. During pendency of the suit, the defendant No.3 namely Bidyadhar Gogoi expired on 9.7.1990. The death of the defendant No.3 in the suit was not informed to the Court and later on the Court has passed a decree in favour of the Bank on the basis of admission on 4.5.1991. Later on the Bank took up execution proceedings of the decree passed by the Court on 4.5.1991 being Title Execution Case No.6/ 97. There also name of Bidyadhar Gogoi continued as defendant judgment debtor No.3. The legal representatives of late Bidyadhar Gogoi namely Smti Numali Gogoi (wife) and Sri Hira Nath Gogoi (son), who are petitioners before this Court filed objection before the executing Court contending therein that late Bidyadhar Gogoi having died on 9.7.1990 the decree passed by the Court against him is a nullity. In support of the allegation made before the Court that Bidyadhar Gogoi died on 9.7.1990 the petitioners herein produced a photostat copy of the Death Certificate. The Court rejected the application on the ground that the Death Certificate is not an original certificate and it is only a photostat copy and, therefore, cannot be relied upon. The Court has also held that it was the duty of the defendant to inform about the death of a party under Order 22 Rule 1 OA of the Code of Civil Procedure and that having not been done, the objection of decree being a nullity cannot be raised at the stage of execution.

(2.) Heard Mr. DC Mahanta, learned counsel for the petitioners and Mr. B. Kalita, learned counsel for the respondent-Bank.

(3.) Any decree passed against a dead person is a nullity and can certainly be challenged at the stage of execution also. The trial Court has committed an error in saying that the legal representatives of the deceased are prevented from raising the question of the decree being a nullity against late Bidyadhar Gogoi on the application of Order 22 Rule 10A CPC. The Court failed to see that the party to the proceedings having expired, could not inform the Court regarding his own death and because the other defendants had not informed the Court of the death of one of the defendant the legal representatives of the deceased defendant cannot be penalized In such a situation the provision of Order 22 Rule 10A is not attracted.