- 1 - NC: 2025:KHC:11692 CRP No. 14 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS CIVIL REVISION PETITION NO. 14 OF 2020 BETWEEN: 1. SRI. D. SURESH BABU, SINCE DECEASED BY LR 2. SMT. PREMA AGED ABOUT 47 YEARS, W/O LATE D. SURESH BABU, RESIDING AT NO. 257, THYAGARAJA MOHALLA, BANNURU TOWN, MYSURU - 571 101. …PETITIONERS (BY SRI. Y.V. PRAKASH, ADVOCATE FOR SRI. Y.K. NARAYANA SHARMA, ADVOCATE) AND: SRI. T.V. SOMAPRABHU, AGED ABOUT 47 YEARS, S/O LATE VENKATAIAH, RESIDING AT SY.NO.352/2, PRABHU FARM, VIJAYANAGARA 4TH STAGE, MYSURU - 570 017. …RESPONDENT (BY SRI. K. HEMANTH KUMAR, ADVOCATE AND SRI. SHASHIKUMAR, ADVOCATE) Digitally signed by KRISHNAPPA LAXMI YASHODA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11692 CRP No. 14 of 2020 THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 21.09.2019 PASSED ON IA NO.4 IN EX NO. 34/2017 ON THE FILE OF THE V ADDITIONAL I CIVIL JUDGE, MYSURU DISMISSING THE IA NO.4 FILED UNDER ORDER 47 RULE 1 FILED UNDER SEC.151 OF CPC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The widow of the deceased-petitioner is aggrieved of the impugned orders dated 02.01.2019 and 21.09.2019 passed by the I Additional Civil Judge and J.M.F.C, Mysore, in execution proceedings initiated at the hands of the respondent. 2. Learned counsel for the petitioner submits that in a suit filed at the hands of the respondent herein for recovery of Rs.3,05,000/- along with interest, the arguments were heard, on 14.06.2016 and the matter was posted for judgment by 18.06.2016. However, since there was a change of the Presiding Officer, on 18.06.2016, - 3 - NC: 2025:KHC:11692 CRP No. 14 of 2020 once again the matter was posted for further arguments to be heard on 21.06.2016. The matter was once again adjourned for arguments to be heard on 14.09.2016. The case was advanced at the request of the plaintiff on 20.07.2016 and the matter was posted for further arguments to be heard on 07.09.2016. The order sheet reveals that the matter was adjourned on 07.09.2016 to 08.09.2016. On 08.09.2016, the judgment was pronounced in the open Court. However, it is the contention of the petitioner herein that on 26.08.2016 the defendant died. Therefore, even in terms of Order XXII Rule 4(4) of CPC, since no application was filed by the plaintiff seeking exemption from bringing the legal representatives of the deceased on record, since he was already placed ex-parte nevertheless, the suit would abate, and such a judgment passed against a dead person would be a nullity in the eye of law. 3. The petitioner entered appearance in the execution case filed at the hands of the respondent herein - 4 - NC: 2025:KHC:11692 CRP No. 14 of 2020 and filed an objection regarding the maintainability of the execution case in view of the facts and circumstances narrated herein above and sought for dismissal of the execution case. The application was dismissed. The petitioner herein filed an application for the review of the order and the same was also dismissed by order dated 21.09.2019. 4. Learned counsel for the petitioner places reliance in the case of T.Gnanavel Vs. T.S.Kanagaraj and Another, reported in AIR 2009 SC 2367, wherein it was held that the High Court had rightly interpreted the provision of Order XXII Rule 4(4) of CPC and accordingly held that the decree passed by the trial Court on 20.12.2002 was a nullity in the eye of law, as the defendant had died during the pendency of the suit and no exemption was sought at the instance of the plaintiff to bring on record the heirs or legal representatives of the defendant before the judgment was pronounced. It was also submitted that in the case of Vasudev Dhanjibhai - 5 - NC: 2025:KHC:11692 CRP No. 14 of 2020 Modi Vs Rajabhai Abdul Rehman and Others reported in AIR 1970 SC 1475, wherein it was held that when a decree is a nullity, for instance, where it is passed without bringing the legal representatives on record and the decree is sought to be executed, an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court that has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. 5. Further, it is also pointed out that this Court, in the case of Smt.M.S.Anuradha Vs Smt.S.Ramanujamma, reported in 2019 AIR CC 301 (Karnataka), has held as follows: "36. Again reiterating the judgment in Kiran Singh's case, the Hon'ble Supreme Court held that if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought - 6 - NC: 2025:KHC:11692 CRP No. 14 of 2020 to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the court in passing such decree and goes to the root of the case. 37. This principle, in the opinion of the Hon'ble Supreme Court, is settled principle of law that the decree passed by a Court for or against a dead person is a "nullity". While concluding it is held that the question regarding legality could be raised in appeal or even in execution proceedings arising out of such a decree." 6. Learned counsel would therefore submit that the impugned order cannot be sustained, since the Executing Court has wrongly interpreted the provision. At any rate, it is submitted that neither the respondent herein raised any objection even before the Executing Court regarding the maintainability of the objections raised at the hands of the petitioner herein, and therefore, such an objection cannot be permitted to be raised before this Court also. - 7 - NC: 2025:KHC:11692 CRP No. 14 of 2020 7. At this juncture, learned counsel for the respondent would fairly submit that having regard to the law declared by the Hon'ble Supreme Court, it is true that even if the sole defendant was placed ex exparte, necessary application should have been filed by the plaintiff seeking exemption in terms of Order XXII Rule 4(4) of CPC. That application not having been filed, the judgment and decree is a nullity in the eye of law. Nevertheless, learned counsel for the respondent submits that liberty may be reserved to the respondent/plaintiff while reopening the suit to enable the plaintiff to file an application to bring the legal representatives of the deceased defendant on record and hereafter proceed in accordance with law. 8. Accordingly, the CRP is allowed. The impugned orders dated 02.01.2019 and 21.09.2019 are quashed and set aside, while the objection raised by the petitioner herein in the Execution Case is sustained. The Execution Case stands dismissed. However, the suit in - 8 - NC: 2025:KHC:11692 CRP No. 14 of 2020 O.S.No.1381/2015 is permitted to be reopened at the instance of the plaintiff for the reasons stated herein above. Ordered accordingly. Sd/- (R DEVDAS) JUDGE rv CT: BHK