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Manmohan (Manager)     11 March 2013

Decree against dead person

A Title Suit was filed in 1998 with the prime accused as Defendant 1 and his wife and children (minors then) as other defendants. Defendant 1 died in 2001 and the Court was duly informed with a petition for substitution of deceased defendant with heirs (already on record as Defendants 2,3,and 4). However Court gave a money decree in 2008 asking Defendant 1 to pay by mistake. Execution suit was filed in 2010 as advised by the Advocate. We have been throughout misguided by the Advocates. As we learn now, the decree was against a dead person and was therefore a nullity though our Advocates made us believe then that the words Defendant 1 to pay in the decree will pose no problem since other defendants were already on record. The Advocate is presently requesting for substitution before the Executing Court u/s 152 of CPC, but we genuinely feel that he is again misguiding us. The question is : 1. Where do we stand now? 2. What's the correct legal procedure under the circumstances? 3. Can the Executing Court allow for substitution? 4. Is the case time-barred for amendment of decree? Pls. help


Learning

 1 Replies

Advocate Kishor Hajare (Advocate)     12 March 2013

Sir,

It is upto the descrition of the executing court, either to allow the substitution or re-send the suit back to the original court which has passed the decree for considering the application for substitution.

In the first parlance, the death of defendant should be brought before the original court and should be placed on record of the court.

It is to take note that, on re-sending the suit to the original court, the original court shall on placing the legal heirs of the deceased defendant on record, may consider any objections or statements of the legal heirs which may affect the decree granted previously.

It is advisable to co-ordinate with your advocate and at the earliest file the application of substitutiion and thereupon execution of decree against the legal heirs of deceased defendant.

Regards

Kishor Hajare/9930647734/hajare.kishor@rediffmail.com


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