SHUNMUGATHAI (DIED) Vs. A.R. MEENAKSHI

JUDGEMENT

(1.) 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.