LexT. GNANAVEL versus T.S. KANAGARAJ AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009) 3 S.C.R. 451
T. GNANAVEL
A
v.
T.S. KANAGARAJ AND ANR.
(Civil Appeal No. 1259 of 2009)
FEBRUARY 25, 2009
B
[TARUN CHATIERJEE AND HARJIT SINGH BEDI, JJ.]
Code of Civil Procedure, 1908:
Order XX// Rule 4 Sub Rule 4 - Civil Court passing a c
decree in ignorance of the death of defendant - Exemption
obtained thereafter for bringing the legal representatives of the
sole defendant on record - Whether the decree passed
becomes a nullity - Held: Yes, as rightly held by the High
"'
Court the order of the High Court was a nullity.
'
D
Order XX// Rule 10(A) - Applicability of - Question not
raised before High Court - Cannot be permitted to raise the
question for the first time before the Supreme Court.
In the appeal, the appellant has challenged the
E
interpretation given by the High Court that once the sole
defendant dies and the civil court passes a decree in
" ignorance of the same and thereafter even there being
•
any exemption obtained under Order XXll Rule 4 Sub-
Rule 4 of the CPC to bring the heirs and legal
F
representatives of the sole defendant on record, the ex
parte decree passed in favour of the plaintiff/appellant
becomes a nullity.
Dismissing the appeal, the Court
G
-.-
HELD:1.1. A plain reading of Order XXll Rule 4 (4) of
the CPC would clearly show that the Court is empowered
to exempt a plaintiff from the necessity of substituting the
heirs and legal representatives of any such defendant
451
H
-!
452
SUPREME COURT REPORTS
[2009] 3 S.C.R.
."
A who has failed to file a written statement or who, having
filed it, had failed to appear and contest the suit at the
time of hearing of the same, but such an exemption can
only be granted before the judgment is pronounced and
in that case only, it can be taken against the said
B defendant notwithstanding the death of such defendant
and such a decree shall have the same force and effect
as it was pronounced before the death had taken place.
[Para 13] [459-D-F]
1.2. If exemption, which is provided under Order XXll
c Rule 4(4) of the CPC is obtained from the Court before
the delivery of the judgment, in that case, it would be
open to the Court to exempt the plaintiff from bringing
on record the heirs and legal representatives of the
defendant even if, the defendant had died during the
D pendency of the suit as if the judgment was pronounced
)
by treating that the defendant was alive notwithstanding
the death of such defendant and shall have the same
force and effect as if it was pronounced before the death
had taken place. That being the position, and that since
E in this case, admittedly, exemption was obtained after the
judgment was pronounced, the provision of Order XXll
Rule 4(4) of the CPC would not be attracted. [Para 14]
[460-E-G]
•
•
F
Zahirul Islam vs. Mohd. Usman and Others, 2003 (1)
sec 476, distinguished.
Elisa and others vs. A. Doss, AIR 1992 Mad. 159,
referred to.
G
2. The High Court had rightly interpreted the
provision of Order XXll Rule 4 (4) of the CPC and
--
accordingly held that the decree passed by the trial court
on 20th of December, 2002, in 0.5. No.3946 of 1999 was
a nullity in the eye of law as the defendant had died
,.
H during the pendency of the suit for specific performance
l
~=
T. GNANAVEL v. T.S. KANAGARAJ AND ANR.
453
of the contract for sale and no exemption was sought at A
the instance of the plaintiff/appellant to bring on record
the heirs and legal representatives of the defendant
before the judgment was pronounced. [Para 17] [462-C-
E]
3. The conditions laid down in Order XII Rule 10{A)
of the CPC are clear to the effect that the exemption to
B
J
be granted by the court has to be obtained before the
judgment is delivered and not after it. Further, the
respondents had disputed the fact that they had not C
intimated the information relating to the death of the
defendant to the appellant. This Court is not entitled to
go into the question of determining the veracity of the
statements made by either party. It is also an admitted
position that the appellant had not raised the question
_.
regarding the applicability of the provision under Order D
XXll Rule 10{A) of the CPC before the High Court and,
therefore, he cannot be permitted to raise such question
for the first time in this Court. [Para 18) [462-H; 463-A-B]
Case Law Reference:
2003 (1) sec 476
AIR 1992 Mad. 159
distinguished
referred to
Para 13
Para 16
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