The respondents 1 to 4 herein had laid a suit in O.S.No.72 of 2005, on the file of the District Munsif Court, Kovilpatti, against M.P.Mariappan (2nd defendant) and respondents 5 and 6 for recovery of money due on both promissory note as well as equitable mortgage and accordingly, it is found that they had been granted a Preliminary Decree in the above mentioned suit on 26.11.1991. On a perusal of the Preliminary Decree, it is found that inasmuch as the counsel for the defendants having reported no instructions and accordingly, the defendants being called and remaining absent, it is found that the said Preliminary Decree had been passed in favour of the plaintiffs accepting their suit claim. Thereafter, it is found that the plaintiffs had preferred I.A.No.366 of 2005 to pass the Final Decree in accordance with the Preliminary Decree passed in the suit. In the said application, it is found that the legal representatives of the deceased second defendant had been brought on record and they, having taken notice in the Final Decree application, had filed a counter contending that even prior to the passing of the Preliminary Decree, the second defendant had died on 29.08.1988 and in such view of the matter, the Preliminary Decree passed against the dead person is invalid and only in the Final Decree application, the legal representatives of the deceased second defendant had been brought on record and hence, the plaintiffs are not entitled to seek any relief against the legal representatives of the deceased second defendant and inasmuch as the Preliminary Decree passed as against the deceased second defendant is a void one, the plaintiffs are not entitled to obtain the Final Decree as prayed for and hence, they prayed for the dismissal of the application laid by the plaintiffs to pass the Final Decree.
2. Considering the rival contentions put forth by the respective parties and also on the basis of the materials placed, it is found that the Court below had discountenanced the contentions put forth by the legal representatives of the deceased second defendant and accordingly, allowed the application preferred by the plaintiffs to pass the Final Decree. Challenging the same, the legal representatives of the deceased second defendant had preferred the present civil revision petition.
3. It is mainly contended by the petitioners' counsel that inasmuch as the second defendant had passed away even prior to the passing of the Preliminary Decree and further as the counsel for the second defendant had reported no instructions, the Court below, in such a factual scenario, should have ordered notice to the second defendant so as to enable him to contest the suit on merits. However, as the Court had not ordered notice to the second defendant on his counsel reporting no instructions, according to him, the Preliminary Decree passed against the dead person is a nullity and hence, the impugned order is liable to be set aside.
4. On the other hand, it is contended by the plaintiffs' counsel that the defendants in the suit had filed a written statement and only thereafter when the matter was taken up for hearing, their counsel reported no instructions and further, it is stated that even according to the petitioners, the second defendant had passed away during the pendency of the suit and as the legal representatives of the deceased second defendant, they should have brought the same to the notice of the Advocate concerned and inasmuch as the factum of the death of the second defendant has not been brought to the notice of the Court concerned or to the plaintiffs and as the plaintiffs are also not aware of the death of the second defendant, it is contended that the plaintiffs would not be in a position to take steps with reference to the same and therefore, according to him, inasmuch as the plaintiffs were not aware of the death of the second defendant and thereby could not have made the application for the substitution of the legal representatives of the deceased second defendant, it is stated that the Preliminary Decree passed in such a situation having been pronounced, notwithstanding the death of the deceased second defendant, shall have the same force and effect as if it had been pronounced before the death had taken place and in this connection, he placed reliance upon Order XX Rule 4(4) of the Code of Civil Procedure. Further, according to him, the plaintiffs also being aware of the pendency of the Court proceedings against the second defendant and on the death of the second defendant, they have a duty and role to inform the same to their counsel or bring it to the notice of the Court by way of necessary application and the plaintiffs having failed to do so cannot now contend that the Preliminary Decree passed against the deceased second defendant is a nullity and hence, according to them, the present resistance put forth by the petitioners is nothing but an attempt to delay the proceedings one way or the other so as to avoid the payment of money to which the plaintiffs are entitled to.
5. As seen from the materials placed, it is found that on the counsel appearing for the second defendant reporting no instructions as well as for the other defendants also it is seen that the Preliminary Decree had come to be passed in the suit. It is found that the defendants have also filed their written statement and thereafter, when the matter had been listed for trial, at that stage of the matter, the counsel having reported no instructions, the defendants remaining absent on being called, it is found that they have been set ex parte and the Preliminary Decree had come to be passed accepting the case of the plaintiffs on the basis of the materials placed by them.
6. It is further found that it is not the case of the petitioners that the Advocate, who had been engaged by the second defendant, is not aware of the death of the second defendant. Equally, it is not the case of the petitioners that they are not aware of the suit preferred by the plaintiffs in O.S.No.72 of 2005 against the second defendant. Nowhere it so stated in the counter filed by them. Therefore, it could be seen that the petitioners are also aware of the suit laid against the second defendant by the plaintiffs for recovery of money. In such view of the matter, on the death of the second defendant, if really the petitioners are serious and diligent in conducting the case, on the death of the second defendant, they should have brought the same to the notice of the Advocate concerned or the Court concerned. However, they remained silent and there is no reason whatsoever as to why the petitioners have not endeavoured to bring the factum of the death of the second defendant to the knowledge of the Court concerned. Therefore, it is found that as rightly determined by the Court below, the petitioners knowing very well about the death of the second defendant and also knowing very well about the institution of the suit by the plaintiffs against the second defendant and others, deliberately, with a view to avoid the payment or delay the payment to which the plaintiffs are entitled to based upon their suit claim are found to have not informed the death of the second defendant in accordance with law. In such view of the matter, they cannot now be allowed to complain that the Preliminary Decree passed against the deceased person is a nullity in the eyes of law.
7. As regards the above contention put forth by the petitioners that the Preliminary Decree is a nullity having been passed against a dead person, as rightly put forth by the plaintiffs' counsel, as per Order XXII Rule 4(4) C.P.C., when the plaintiffs are not aware of the death of the second defendant and the petitioners also having failed to discharge their duty by intimating the death of the second defendant to the Court or the Advocate concerned, despite having knowledge about the Court proceedings, it is found that notwithstanding the death of the second defendant, the Preliminary Decree that had been passed against the second defendant in the suit shall have the same force as if it had been pronounced before the death taken place. Therefore, the contention put forth that the Preliminary Decree passed against the dead person is a nullity by blaming the plaintiffs as if they are responsible for not bringing the legal representatives of the deceased second defendant on record as such cannot be countenanced. It is not the case of the petitioners and they have also not placed any material that the plaintiffs are aware of the death of the second defendant prior to the passing of the Preliminary Decree.
8. The learned counsel for the petitioners contended that on the counsel reporting no instructions, the duty is cast upon the Court to send notice to the concerned defendant and the Court having failed to do so, according to him, the Preliminary Decree passed in the suit is liable to be set aside and in this connection, he has placed reliance upon the decisions reported in AIR 1998 SC 258 [Malkiat Singh and another vs. Joginder Singh and others], AIR 1993 SC 1182 [Tahil Ram Issardas Sadarangani and others vs. Ramchand Issardas Sadarangani and another]. In the cases referred to by the petitioners' counsel, inasmuch as considering the facts and circumstances of the case involved in the said decisions holding that the parties concerned in that case cannot be said to be careless and negligent, accordingly, it was held that notice should have been ordered by the Court below to the concerned parties on the counsel appearing for the parties concerned reporting no instructions to the Court. On the other hand, insofar as this case is concerned, as adverted to above, it is not the case of the petitioners in the counter that they are not aware of the suit laid by the plaintiffs against the second defendant and also the fact that the second defendant was contesting the said suit by filing a written statement. In such view of the matter, the petitioners being aware of the entire scenario about the lis, on the death of the deceased second defendant, should have made all the endeavours to bring the same to the notice of the Court and they having failed to do so and when it is not their case that the death of the deceased second defendant is known to the plaintiffs before the passing of the Preliminary Decree, it could be seen that the petitioners cannot now be allowed to take advantage of their deliberate inaction in not bringing the death of the second defendant to the notice of the Court in the manner known to law and accordingly, as seen above, the Court below has rightly held that the petitioners have not brought the fact to the Court only with a view to avoid the payment or delay the payment one way or the other, such being the conduct of the petitioners, it is found that they are not entitled to any indulgence from the Court and accordingly, it is found that the Court below has rightly discountenanced the pleas put forth by the petitioners in the counter and accordingly, allowed the application preferred by the plaintiffs to pass the Final Decree. In such view of the matter, as rightly contended by the plaintiffs' counsel, the above decisions relied upon by the petitioners' counsel, on facts, are found to be not applicable to the case at hand.
9. In the light of the above discussions, it is found that the Court below has passed the impugned order considering the materials placed by the respective parties in the proper perspective both factually as well as legally and hence, it does not call for any interference from this Court.
10. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
To:
The District Munsif, Kovilpatti.
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