LAWS(P&H)-1982-8-84

DHARM PAL Vs. SHANKAR LAL

Decided On August 31, 1982
Dharm Pal Appellant
V/S
SHANKAR LAL Respondents

JUDGEMENT

(1.) This revision petition is directed against the order of the executing Court whereby the execution application filed on behalf of the decree-holder-petitioners, was dismissed.

(2.) The petitioners filed a suit for damages on account of malacious prosecution against Shankar Lal, defendant. He died during the pendency of the suit, but his legal representatives were not brought on the record. Ultimately the decree dated July 25, 1979, for the recovery of Rs. 1,500/- with proportionate costs was granted by the trial Court. It was also observed in the decree that the same will be executable against the heirs of the deceased Shankar Lal to the extent of the estate they inherited from him. On September 15, 1979, the execution application was filed by the petitioners against the legal representatives of Shankar Lal, deceased. The application was contested on their behalf mainly on the ground that the decree as such was inexecutable against them because the right to sue did not survive after the death of Shankar Lal. The suit was for damages for malacious prosecution and the cause of action was personal in nature against the person from whom the damages were claimed, and in such cases, the cause of action died with the death of the person from whom the damages are sought to be recovered. This objection prevailed with the executing Court and consequently, the execution application was dismissed. Dissatisfied with the same, the decree-holders-petitioners have come up in revision to this Court.

(3.) The learned counsel for the petitioners, contended that it was made clear in the decree itself that the heirs of the deceased Shankar Lal, judgment-debtor, would be liable to the extent they inherit his estate. Moreover, Shankar Lal died after the arguments were heard and before the judgment was pronounced in the suit. Therefore, in these circumstances, it was not necessary that his legal heirs should have been brought on the record. The decree, according to the learned counsel, was binding on the heirs of the deceased Shankar Lal, judgment-debtor. After hearing the learned counsel for the petitioners, I do not find any merit in this revision petition. Ordinarily, it may be that the decree as such may be executable against the heirs of the deceased judgment-debtor to the extent they inherit his property, but in the present case, admittedly, the suit was for damages on account of malacious prosecution. The judgment-debtor died before the decree was passed against him. It is not disputed that the cause of action was personal against him and it died with his death. If it is so, then, in that situation, the trial Court was not competent to pass any decree after the death of Shankar Lal. It is not a case where the trial Court was competent to pass a decree which may be otherwise illegal, but within jurisdiction. It is a case where the jurisdiction of the trial Court to pass a decree ceased to exist after the death of Shankar Lal before the passing of the decree. Thus, the trial Court had no jurisdiction to pass the decree. Once it is so held, then the executing Court was competent to go into this matter at the time of the execution of the decree. Under these circumstances, it has been rightly held by the executing Court that the execution application against the legal representatives of Shankar Lal, deceased, was not maintainable.