The principles of natural justice provide for fairness, equality, equity and reasonableness. Article 14 of the Constitution of India provides for right to equality and anything which clearly vitiates the basic fundamental principle envisaged in Art. 14 shall be held anachronistic to that effect. The procedure involved shall be fair, just and reasonable. In a case of death of a party in a suit, the courts find it challenging and difficult to arrive at decision without hearing both the parties in dispute. There can be no judgment, decree or a court order against a dead person. However, there have been instances where judiciary had duly stepped and addressed the grey areas apropos execution of a decree against a dead person. The article will illuminate on the less explored aspect of the general principles surrounding the execution of a decree against a dead person. There have been some significant development in this regard, however, it is still an half known fact by majority of people. This article will cover the rule of law propounded by the judiciary in landmark cases which shall efficaciously simplify the principles surrounding the topic. This article shall also attempt to shed some light on the scope of the following with the help of certain judgments propounding on its applicability; ex-parte judgments and its implication in light of two scenario, namely: 1) where the party is unaware of the death of the respondent, 2) willingly upholding information apropos death of a fellow respondent and subsequently disclosing it at a later stage.
JUDICIAL DICTUMS
Much of the controversy vis-à-vis execution of a decree against a dead person has been propounded upon. The canonical principle is that a decree so passed by the court antagonistic towards a dead person is a nullity. One might wonder as to why such preclusion, It’s obvious that a judge while applying his judicial mind has to look at the bigger picture. A dead person cannot speak, so passing of a decree without efficaciously listening to both the partied will be construed as unlawful and hence a degree passed against a person is a nullity (Gurnam Singh and Ors v. Gurbachan Kaur, AIR 2017 SC 2419). Justice Singhal in N. Jayaram Reddi and Another v. Revenue Divisional Officer, Karnal ((1979) 3 SCC 578)while dealing with the question posed as to why a decree against a dead person is a nullity and if it’s a nullity for all purposes observed a decree against a dead person is treated as nullity because it cannot be allowed to operate against his legal representatives when he was never brought on record to defend the case. While the law treats such a decree as a nullity but will abide by it as it stands, or as it may be modified thereafter on appeal. One can assume from the observation above that a legal representative cannot be held accountable if the said person was never brought on record. The said observation is astute in its finding as it clearly lays down some clarity surrounding the topic. Justice Singhal was right to observe the aforementioned position and it has been quite beneficial in later pronouncement.
The important questions which arise from the aforementioned judgments are whether there are any grounds for questioning such decree and if so when can it be questioned. If the certain question is left unanswered then it will give rise more lis pendens which shall again hamper the basic norms of justice.
The Supreme Court in Hira Lal v Kali Nath (AIR 1962 SC 199), held some grounds on which a decree can be challenged. They are as follows:
When a court lacks inherent jurisdiction
At the time of initiation of suit, or a decree passed, the defendant was already dead.
Any other ground rendering the court jurisdiction less in respect of the subject matter.
The third reasoning in my opinion widens the scope of inspection by court and some might use it for ill means by filing unnecessary suit but the said ground also provides scope for the people who are left remediless and do not fall under the first two grounds. Another fundamental principle laid down in this case was that where a decree is passed in ignorance of death of the sole appellant, the decree still would be a nullity.
The Supreme Court in Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) laid down a very rudimentary principle. The majority judgment was delivered by Justice Venkatarama Ayyar who laid down the following radical principle:
“6……. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of the parties.”
The aforementioned decision was relied upon in a few judgments over the year. The decision was further explained apropos jurisdiction in the case of Sneh Lata Goel v. Pushplata and Others (2019 SCC Online SC 45).It was explained that the Kiran Singh Case (Supra) holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over subject matter. An objection to the want of jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit.
DECREE IN FAVOUR OF A DEAD PERSON
Another question which arises is if a decree against a dead person is a nullity, will a judgment in favor of a dead person be a nullity? One would assume it not to be as it might be construed to be a non-detrimental in nature, as no harm is being done to the legal representatives of the dead person. However, that is not the case. In order to for the legal representatives to successfully enjoy the judgment in their favor, they have to be brought on record. If a judgment is passed in favor of the dead party, where the person died during the proceedings and where the legal representatives were not brought on record, then in those cases the decree would be a nullity. In conclusion any decree passed in ignorance of the death of a sole appellant the decree evidently would be a nullity and any decree passed in favor of a sole appellant is a nullity. It stands on the same footing as that of a decree against a dead person. (SC Srivastava v. Indraprastha Apollo Hospital, Case No. A/239/2016.)
EX-PARTE AWARD AGAINST A DEAD PERSON: VALIDITY?
There were initially two meanings of an ex-parte award. One being ex-parte merely means in the absence of the other party and the other being that the court are at liberty to proceed with the proceeding without the defendant unless a proper cause is shown for his non-appearance. The former view was accepted by the Supreme Court in Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425).
A decree against a dead person is by all means a nullity. However, one might wonder the validity of an ex-parte award against a dead person. From the aforementioned opinions it can be said that an ex-parte award is passed where the other party fails to show up during the proceedings and a decree is then passed against them. A proceeding stands abated if a sole party to the proceeding dies or where the legal representatives of the parties are not impleaded or brought on record. Now the question arises would an appeal stand abated if an ex-parte award is passed against a dead person. Normally, one would assume yes, but however the position taken up in Ayyappan Pillai & Ors. v. Raveendranathan (1998 SCC Online Ker 222).which reiterated the position laid down in Bhagirath Mal v. Bhagwan Dutt (AIR 1996 Rajasthan 27).The relevant excerpt of the decision is presented below:
“17. The Rajasthan High Court in Bhagirath Mal v. Bhagwan Dutt (AIR 1996 Rajasthan 27) held that decree passed against a dead person is not a nullity when deceased defendant had not filed written statement and had not made legal appearance during pendency of the trial and in fact the trial has proceeded against him ex-parte. The appeal against such decree cannot also be dismissed for not bringing legal representatives of deceased on record.”
The reasoning which can be derived from the aforementioned Bhagirath Case is that if an advocate continues representing a client after his death and fails to inform the same to the court and an award is passed ex-parte, in those circumstances the decree passed would not be a nullity. If there is a death of one of the pro forma respondents, in this regard Supreme Court in the case of Kanhaiyalal v. Rameshwar (AIR 1983 SC 503), held that wherein there is a death of one of the pro forma respondent and there is foundering in terms of bringing the legal representatives on record in time, then such a scenario would not lead to abatement. In order to accelerate the process, the Courts have the liberty to pursue the proceedings wherein the party failed to bring the legal representatives on record (Sushil K. Chakravarty v. Tej Properties Private Ltd., (2013) 9 SCC 642). Where the court proceeds with the case of ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity (Jarnail Singh v. Saudagar Singh, 2003 (3) RCR (Civil)).
APPROPRIATE STAGE FOR DISCLOSING THE INFORMATION
The legal representative appearing for the party in a suit must disclose the information of the death the party the moment it becomes privy to him and then intimate the other party. This was the rule laid down in the case of Gangadhar v. Shri Raj Kumar (AIR 1983 SC 1202).It’s incumbent on the advocate pleading on behalf of the deceased to inform the court and responding party about the death of the party. Another basic principle elucidated in the case of Abdul Azeez Sahib v. Chanabagiammal (AIR 1983 MAD 5), in which Madras High Court held that a decree passed in favor of a person is not a nullity and failure to intimate the death of a party to a suit cannot be construed to be irregular and the decree is still executable.
The question now arises as to when can a person appeal or bring forth such information, what is the repercussion of withholding such information?
It was held in the case of Lachmi Narain Marwari v. Balmakund Marwari (1924 AIR (P.C.) 198), that a suit can only be dismissed at appeal; it cannot be reversed before that. Once a decree has been passed, a party incurs or acquires some liabilities or rights respectively. They stay fixed unless the decree is amended or set aside. A decree so passed might be wrong, but however, the said decree can only be set aside via congruous proceedings like appeal, revision or review.
It’s a given law that an advocate or the counsel of the deceased must provide the intimation of the deceased deaths to the court and the court to the other party. The court has the right to move forward and pass a decree if a person fails to file a written statement or fails to contest after filing. A person withholding information about a person’s death is wrong, however a party’s right should not be affected just because the other party failed to gets it legal heir or representatives impleaded Amba Bai v. Gopal ((2001) 5 SCC 570). The decree passed in ignorance of a death is not a nullity and the decree so passed shall be taken up at proper respective stages like appeal, revision or review. The most recent case to uphold this point of view is the case of B.K Basha v. Mohamed Ali (CRP NPD. 771 OF 2014) and Mahadeo Thakur and Others v. Faljit Mahto and Others (2019 SCC Online Jhar 1232), where the High Court have reiterated the long standing position apropos the execution of a decree ex-parte or otherwise and further held that a court cannot take away the right of a party except at the proper stages of appeal, revision or review.
CONCLUSION
The law against a decree against a dead person is settled. From the aforementioned cases in this article which clearly highlight the provision apropos decree against a dead person. Right to fair trial is amongst the many principles of natural justice. However, as important as is a right for a dead person, so is the right for a living. The article has focused on illuminating the settled general principles vis-à-vis decree against a dead person. The article also focused on ex-parte decision for and against a dead person and the proper stages for raising a necessary concern. The three appropriate stages mentioned for raising concerns were:
APPEAL, REVISION REVIEW
These were the three stages which have been reiterated over time. However, one would notice the stage of execution has nowhere been mentioned. In the case of Vantaku Appalanaidu v. Pedeinti Demudamma (AIR 1982 Andhra Pradesh 281) where an appellate court passed a decree without the knowledge of the death of a party. Later on, an appeal for execution was undertaken by the decree creditor, to which an objection was raised.
High Court overruled the expostulation and held the decree maintainable. A decree passed in ignorance of the death of the plaintiff is a mere irregularity; it cannot have the effect of making the decree as one without jurisdiction.
In the end I would like to conclude with an excerpt from Corpis Juris Secondum, Volume 50 at page 6:
“514. – Death of party before judgments:
A judgment rendered for or against a party after his death generally is not subject to a collateral attack, except where the action was commenced after the party had died.
Ordinarily, where jurisdiction of the parties to an action has duly attached, the fact that one of them died before the rendition of the judgment for or against him does not make a judgment absolutely void, as discussed supra 30, and, therefore, it is not open to impeachment in a collateral proceeding. According to some decisions, however, a judgment rendered under such circumstances is absolutely void, as discussed supra 30, and therefore is subject to collateral attack.
Ever where the party was dead before the institution of the suit, it has been held that this does not make the judgment a mere nullity, within the meaning of the rule against collateral impeachment, but it generally has been held that a judgment rendered in an action begun after the death of defendant therein is null and void and may be attacked collaterally.”
A decree against a dead person is by all means a nullity. However, one might wonder the validity of an ex-parte award against a dead person. From the aforementioned opinions it can be said that an ex-parte award is passed where the other party fails to show up during the proceedings and a decree is then passed against them. A proceeding stands abated if a sole party to the proceeding dies or where the legal representatives of the parties are not impleaded or brought on record.