Decree passed in favour of a dead person under Code of Civil Procedure

ABSTRACT

A decree is one of the most customarily terms heard in Civil Matters.The term “decree”has been defined under Section2(2) of the Code of Civil Procedure,1908.In this Article,I will be focusing on decree passed in favour of a dead person under Code of Civil Procedure. As far as the overall standards in regards to the request went against a dead individual being void is concerned, the equivalent is established on the guideline of regular equity, wherein, no individual can be censured unheard, be that as it may, concerning whether the request went for a dead individual would be void has been managed by the Court.

KEYWORDS:-Decree,Code of Civil Procedure,Execution,Judgement.

INTRODUCTION

In Prahlad Singh v. The President District Consumer Disputes Redressal Forum and Ors[1],it was laid as under[2]: “It may be true that the order against a dead person may be nullity, but same principle is not applicable when the order is in favour of a dead person.” Further the arguments for the decree are explained in detail. Where the court continues with the case in obliviousness of the reality of death of an individual and passes a pronouncement, that declaration can’t be treated as a nullity. It might, almost certainly, be an off-base pronouncement, yet it should be put aside by taking proper procedures like intrigue, correction or audit. As a rule, an announcement went for a dead individual isn’t a nullity, however a pronouncement went against a dead individual can be interpreted as a nullity.

Regardless of whether there is decrease of the suit that would not make the announcement went in the suit as one without purview and the executing court isn’t qualified for decline to execute the declaration on the ground that the offended party was not alive on the date when the pronouncement was passed in support of himself.

INDIAN SCENARIO

1.) Capture and detainment in execution of an announcement:

One of the methods of executing orders is capture and detainment in common jail of the judgment-account holder.

Areas 55 to 59 and Rules 37 to 41 of Order 21 arrangement with capture and confinement of the judgment-account holder in common jail.

Area 55 gives that a judgment account holder might be captured in execution of a declaration at any hour and on quickly, and will, when practicable, be brought under the steady gaze of the court, and his confinement might be in the common jail of the locale wherein the court requesting the detainment is arrange, or where such thoughtful jail doesn’t manage the cost of reasonable convenience in whatever other spot which the State Government may designate for the detainment of people requested by the courts of such region to be kept, then again, actually:

2.) PROCEDURE

1. For the reasons for making a capture under this area, no abode house will be entered after nightfall and before dawn.

2. No external entryway of an abode house will be torn open except if such dwelling house is in the inhabitance of the judgment indebted person and he cannot, or in any capacity forestalls get to thereto, yet when the official approved to make the capture has appropriately accessed any residence house, he may tear open the entryway of any room where he has motivation to accept the judgment account holder is to be found.

3. In the event that the room is in the real inhabitancy of a lady who isn’t the judgment-account holder and who, as indicated by the traditions of the nation, doesn’t show up out in the open, the official approved to make the capture will pull out to her that she is at freedom to pull back, and, subsequent to permitting a sensible time for her to pull back and giving her sensible office for pulling back, may go into the space to make the capture.

4. Where the announcement in execution of which a judgment account holder is captured, is a declaration of the installment of cash and the judgment indebted person pays the measure of the pronouncement and the expenses of the capture to the official capturing him, such official will without a moment’s delay discharge him.

Order XXI Rule 37 of the Code of Civil Procedure manages the optional intensity of the court to give Show Cause Notice to the judgment account holder against detainment in jail. It gives that where an application is for the execution of a pronouncement for the installment of cash by the capture and confinement in the common jail of a judgment borrower who is at risk to be captured in compatibility of the application, the Court will, rather than giving a warrant for his capture, issue a notification calling upon him to show up under the steady gaze of the court on a day to be determined in the notification and show cause why he ought not be focused on the common jail.

Given that such notification will not be fundamental if the court is fulfilled by affirmation, or something else, that with the item or impact of postponing the execution of the announcement, the judgment indebted person is probably going to slip off or leave the neighbourhood furthest reaches of the locale of the court. Sub-segment (2) Rule 37 sets out that where appearance isn’t made in compliance to the notification, the court will, if the pronouncement holder so requires, issue a warrant for the capture of the judgment indebted person.

Sub-area (3) of Section 55 of the Code of Civil Procedure additionally sets out that where a judgment indebted person is captured in execution of a declaration for the installment of cash and brought under the steady gaze of the court, the court will illuminate him that he may apply to be proclaimed a wiped out, and that he might be released in the event that he has not submitted any demonstration of dishonesty in regards to the subject of the application and on the off chance that he agrees to the arrangements of the law of indebtedness for the present in power.

Section 56 of the Code of Civil Procedure gives that a lady will not be captured in execution of declaration in installment of cash.

Section 57 of the Code of Civil Procedure manages the means recompense payable by the announcement holder for the resource of the judgment indebted person. As per it, the State Government may fix scales graduated by rank, race and nationality of such month to month remittance.

3.) Period of Detention

Section 58 of the Code of Civil Procedure manages the time of detainment. As per it each individual confined in the common jail in execution of a declaration will be so kept:

A .Where the pronouncement is for the installment of an aggregate of cash surpassing one thousand rupees, for a period not surpassing three months.

B. Where the declaration is for the installment of a whole of cash surpassing 500 rupees, yet not surpassing one thousand rupees, for a period not surpassing a month and a half.

4) How can one get release?

Given that he will be discharged from such detainment before the termination of the said time of confinement:

1. On the sum referenced in the warrant for his detainment being paid to the official responsible for the common jail.

2. On the pronouncement against him being generally completely fulfilled.

3. On the solicitation of individual on whose application he has been so kept.

4. On exclusion to pay resource recompense by individual on whose application he was so confined Provided additionally that he will not be discharged from such detainment under condition (ii) or (iii) without the request for the court.

CASE LAWS

1.) Kerala High Court

K.V.Gopalan vs Nandini Narayanan[3] on 29 January, 2000

The learned counsel for the petitioner relying on the two decisions reported in HimangshuBhushanKar v. Manindra Mohan Baha[4]and RaddulalBhurmal v. MahaboirprasadBisesarKalwar[5], contended that a decreepassed in favour of a deadperson is not a nullity, and the fact of death not brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making the decree void ab initio and the decree is executable. Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decreepassed in favour of a deadperson is not a nullity, though a decreepassed against a deadperson can be construed as a nullity. Even if there is abatement of the suit, that would not make the decreepassed in the suit as one without jurisdiction and the executing Court is not entitled to refuse to execute the decree on th ground that the plaintiff was not alive on the date when the decree was passed in favour.”

So far as the general principles regarding the order passed against a dead person being void is concerned, the same is founded on the principle of natural justice, wherein, no person can be condemned unheard, however, as to whether the order passed in favour of a dead person would be void has been dealt with by this Court in Prahlad Singh v. The President District Consumer Disputes Redressal Forum &Ors. : S.B. Civil Writ Petition No. 1103/2005 decided on 25/4/2005, wherein, it was laid down as under:

“Secondly, the order in favour of a dead person cannot be said to be nullity and, therefore also I do not find any merit in submission of the learned counsel for the petitioner that the order of the State Government is nullity. It may be true that the order against a dead person may be nullity, but same principle is not applicable when the order is in favour of a dead person.”

2.) Madras High Court

In The High Court Of Judicature At … vs Mohamed Alion 13 March[6], 2018

In the above decisions, this Court and High Court of Punjab & Haryana held that a decree passed in ignorance of death of defendant is only an irregularity and executing court cannot refuse to execute the decree. By passing a decree, a party acquires a right and the same cannot be taken away except by setting aside, modifying or varying the decree in Appeal, Revision or Review. In the present case, the petitioner has not sought to modify, vary or set aside the decree by filing Appeal or Review or Revision. In such case, the judgments relied on by the learned counsel for the first respondent and the three judgments referred to above are squarely applicable to the facts of the present case. The learned Judge, considering the materials on record and relevant provisions, dismissed by giving cogent and valid reason. There is no irregularity or illegality in the impugned order warranting interference by this Court.

CONCLUSION

Decree passed in favour of dead person is not void. Decree passed against the dead person is void. The appeal was filed by the petitioner before the State Commission and it was his duty to bring on record the legal representatives of the deceased respondents a decree passed in favour of a dead person is not a nullity, though a decree passed against a dead person can be construed as a nullity.

Even if there is abatement of the suit that would not make the decree passed in the suit as one without jurisdiction and the executing court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour. To the extent the general norms with respect to the solicitation conflicted with a dead individual being void is concerned, the proportional is set up on the rule of standard value, wherein, no individual can be blamed unheard, in any case, concerning whether the solicitation went for a dead individual would be void has been overseen by the Court.

An announcement went for a dead individual isn’t a nullity, however a pronouncement went against a dead individual can be interpreted as a nullity. Regardless of whether there is reduction of the suit, that would not make the announcement went in the suit as one without purview and the executing Court isn’t qualified for decline to execute the pronouncement on th ground that the offended party was not alive on the date when the declaration was passed in favor.

 REFERENCE

WEBSITES

1. INDIAN KANOON

https://indiankanoon.org/

2. LEGAL INDIA

https://www.legallyindia.com/

3. LIVE LAW

https://www.livelaw.in/

4. SUPER LAWYER

BOOKS

1. The Code of Civil Procedure: Book by DinshahFardunjiMulla

2. Civil Procedure Code of India: Indian Law Series

3. Code of Civil Procedure, 1908 :Book by C. K. Thakker and M. C. Thakker


[1]Prahlad Singh v. The President District Consumer Disputes Redressal Forum and Ors.(2005)S.B. Civil Writ Petition No. 1103(India)

2. Law Web, Whether decree in favour of dead person is nullity? Friday 28 December, 2018, https://www.lawweb.in/2018/12/whether-decree-in-favour-of-dead-person.html

[3]Kv. Gopalan Vs Nadini Narayanan.,(2013) O.P (C) No. 783 (India)

[4]HimangshuBhushanKar v. Manindra Mohan Baha (2000) AIR 1954 Cal. 205 (india)

[5]RaddulalBhurmal v. MahaboirprasadBisesarKalwar (1959) AIR 1959 Bom 384 (India)

[6]The High Court Of Judicature At … vs Mohamed Alion (2018) C.R.P. (NPD) No.771 2014 (India)

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