Decree Doesn't Become Nullity Only Due To Death Of Some Defendants During Suit If Right To Sue Survives Against Remaining Defendants: Patna HC

The Patna High Court dismissed a petition under Article 227 of the Constitution challenging the Sub Judge's order that denied an application to dismiss an execution case. The court held that a decree does not become null for all defendants if the right to sue persists against the remaining defendants.

Justice Arun Kumar Jha, presiding over the case observed, “In the present case, even if contention of the petitioner about decree being passed against dead persons is taken to be correct, the decree would not become nullity against all the defendants if right to sue survives against other defendants. Since the suit would not abate as a whole and, for this reason, decree as a whole would not become nullity.”

The case involved a judgement debtor (the petitioner) and a decree-holder (Respondent No. 1), who had previously obtained a decree for the declaration of title and possession over land detailed in the plaint. During the suit's pendency, certain defendants passed away, and their heirs were substituted. After the suit was decreed with an order for the defendants to surrender vacant possession of the land, the plaintiff initiated an execution case. The executing court was made aware of a pending application for stay before the appellate court. Nonetheless, it rejected the petitioner's plea to dismiss the execution case against the deceased defendants, prompting the current petition.

The Petitioner's Counsel contended that the impugned order is arbitrary, a colourable exercise of power, and lacks sustainability. He argued that the order was issued without judicial consideration and contradicts the settled legal principle that a decree against a deceased person is null and void, rendering it non-executable.

Alternatively, the Counsel appearing on behalf of the Respondent contended that the impugned order was sound and required no intervention from the Court. Furthermore, he contended that there was no legal requirement to register a miscellaneous case under Sections 47 and 151 of the Code of Civil Procedure in the absence of a cited provision in the application, as the core issue can be resolved by the court using the existing record.

The Court noted that, typically, under Rule 459 of the Civil Court Rules, a miscellaneous case should be initiated when an application is filed under Section 47 of the Code of Civil Procedure. However, in the current case, the petitioner's application lacked any indication of the specific provision under which it was filed before the executing court in the Execution Case and did not request the institution of a miscellaneous case to address the objections raised.

The Court observed that the petitioner's application claimed that some defendants had passed away during the trial, suggesting that the execution case should be dismissed.

However, the Court stated, “In these circumstances, the institution of miscellaneous case was not warranted. Further, if there is no issue raising disputed facts requiring adducing evidence and elaborate hearing, I do not think there is any requirement of institution of any miscellaneous case on the basis of an application which has been filed without making any such prayer or without mentioning any provision. Hence, the contention of the learned senior counsel for the petitioner on the aforesaid ground is not sustainable.”

The Court further noted that the executing court had already thoroughly addressed the petitioner's arguments in its order. The petitioner's claim that the decree was null due to the defendants' deaths was rejected because the legal heirs of the deceased defendants, who had been recorded in the case, either chose not to contest or were absent, thus forfeiting any claim based on abatement or nullity.

Additionally, the Court emphasised that, as the legal heirs were properly on record, the decree could not be considered a nullity.

The Court highlighted, “The petitioner is the son of defendant Rasulan Nessa and the petitioner was himself a party in the trial court as well as one of the appellants in the appellate court. He did not disclose about death of his mother before the learned trial court and even made her deceased mother party in the appellate court.”

The Court ruled that the challenge to the execution proceedings was unfounded, with the absence of a miscellaneous case being irrelevant under these circumstances.

Thus, the Court ruled held that the impugned order passed by the Sub Judge-8, Vaishali at Hajipur in the Execution Case was a reasoned order passed after due consideration of each and every aspect of the matter.

Accordingly, the Court dismissed the petition while allowing parties to seek legal remedies in appropriate proceedings if desired.

Case Title: Abdul Badud v Abdul Quayum & Ors.

LL Citation: 2024 LiveLaw (Pat) 98

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