Case Background
The dispute began with a land title suit in Vaishali district. Respondent no. 1 (the decree-holder) had filed Title Suit No. 162 of 1998 against the present petitioner and several other defendants or their ancestors.
In that title suit, the plaintiff sought declaration of his title and possession over 3 acres and 43 decimals of land described in Schedule 1 of the plaint. Later, by amendment, he also claimed mesne profits.
During the pendency of the suit, some defendants died. Their heirs were substituted in some instances. After service of notices, the defendants appeared and three sets of written statements were filed.
On 28.02.2017, the trial court decreed Title Suit No. 162 of 1998. The defendants were directed to hand over vacant possession of the suit land to the plaintiff within 60 days. If they failed, the plaintiff could obtain possession through the court process. The court also allowed mesne profits in favour of the plaintiff.
Aggrieved, the present petitioner and the third set of respondents filed Title Appeal No. 33 of 2017 before the District Judge, Vaishali at Hajipur. That appeal is still pending.
On the strength of the decree dated 28.02.2017, the decree-holder instituted Execution Case No. 4 of 2017 before the Sub Judge-8, Vaishali at Hajipur against all defendants named in the decree.
The petitioner, being one of the judgment-debtors, appeared in the execution case on 14.09.2017. He informed the executing court about the pendency of Title Appeal No. 33 of 2017 and sought stay of the execution till disposal of the appeal. He also informed that a stay application was pending before the appellate court.
On 25.09.2017, the executing court dismissed the stay applications and proceeded to take steps for appointment of Nazir and police force for execution of the decree.
During the course of the execution proceedings, the petitioner claimed to have learnt that some defendants had died during the pendency of the original suit and that no substitution had been made for them. On this basis he raised a fresh challenge to the very executability of the decree.
What the Court Examined and Decided
The core of the petitioner’s case before the Patna High Court was that the decree in Title Suit No. 162 of 1998 was a nullity and therefore non-executable, because it had been passed against dead persons without substitution of their legal heirs.
The petitioner pointed out that certain defendants — namely Rasulan Nessa, Johara (Johra) Khatoon, Chanda (Chand) Devi, Ali Hussain and Ram Pukari Devi — had allegedly died on 25.01.2010, 10.03.2015, 20.05.2015, 21.09.2015 and 14.01.2017 respectively, all during the pendency of the suit.
On 15.12.2017, he filed an application before the executing court in Execution Case No. 4 of 2017. He annexed death certificates of some of these defendants and prayed that the execution case be dismissed on the ground that the decree had been passed against dead persons and was, therefore, a nullity.
The decree-holder filed a rejoinder on 21.12.2017, contesting the application on several grounds and seeking its dismissal. After hearing, the Sub Judge-8, Vaishali at Hajipur rejected the petitioner’s application by order dated 13.02.2018.
The present civil miscellaneous petition under Article 227 of the Constitution was filed before the Patna High Court to challenge that rejection order.
The petitioner, through senior counsel, raised two main legal points before the High Court:
First, he argued that his application was under Sections 47 and 151 of the Code of Civil Procedure (CPC) and the executing court should have registered it as a miscellaneous case. According to him, without such registration and without giving him an opportunity to lead evidence, the court could not have dismissed his objection at the admission stage.
He contended that Rule 459 of the Civil Court Rules requires institution of a miscellaneous case whenever objections under Section 47 CPC are raised. He also claimed that the executing court disbelieved the death certificates on mere conjectures and surmises, and passed a non-speaking order without proper application of mind.
Secondly, he claimed that a decree passed against dead persons is a nullity in law. Since, according to him, no substitution of legal heirs of the deceased defendants was made during the trial, the decree itself was void and incapable of execution. He submitted that the fact that the same dead persons were later named in the memorandum of appeal was only a bona fide mistake by the advocate and could not cure the defect in the trial proceedings.
The decree-holder’s counsel opposed the petition and defended the execution order. He argued that the executing court had examined every contention and passed a detailed, reasoned order which did not call for interference under Article 227.
On the issue of non-registration of a miscellaneous case, he submitted that the petitioner’s application never cited any provision of law, nor did it contain a prayer for registering a miscellaneous case. Since the point raised could be decided on the existing record without elaborate evidence, there was no legal compulsion to open a separate miscellaneous file.
On the allegation that the decree was a nullity, the decree-holder argued that not every decree passed when a party has died becomes a nullity. In particular, if the estate of a deceased party is already represented by other legal heirs on record, the decree does not automatically become void for all purposes.
He also stressed that the petitioner’s conduct itself cast doubt on his story. According to him, throughout the pendency of the title suit, no counsel for any defendant informed the court about the deaths of these defendants, though Order 22 Rule 10-A CPC requires such intimation. This suggested that the alleged dates of death were not accurate.
Further, when the petitioner filed Title Appeal No. 33 of 2017 on 24.04.2017, he himself impleaded all these allegedly dead defendants as respondents. Notices were issued on 27.05.2017, and the service report filed on 16.06.2017 showed that notices were served upon Johara Khatoon and Chanda Devi, who reportedly refused to accept them in the presence of the appellant and witnesses.
For Rasulan Nessa, shown as respondent no. 26 in the appeal, her notice was said to have been received by the petitioner himself along with his family members. The decree-holder argued that, since the petitioner is her son, if she had already died, he was duty bound to inform both the trial and the appellate courts. His failure to do so, coupled with the later production of a death certificate, led the executing court to doubt the genuineness of that certificate.
The decree-holder further pointed out that:
• All heirs of Rasulan Nessa were already on record as defendants nos. 6(B) to 6(E).
• Defendant no. 4(B) Ram Pukari Devi never appeared even after paper publication, so the decree was ex parte against her.
• The decree was ex parte against another defendant (no. 7(k)).
• Chand Devi (defendant no. 14(F)) had received appeal notice, and her sons and daughters were on record as defendants 14(a) to 14(d).
• Johara Khatoon died issueless, but she too had received appeal notice; moreover, her brothers and sisters were already parties as defendants 18(a) to 19(c) and 19(c) to 19(f), and were judgment-debtors in execution.
He submitted that as the estate of each deceased defendant was duly represented by their heirs who were already parties, no abatement occurred and the decree did not become a nullity. He relied on the Supreme Court judgment in Balvant N. Viswamitra v. Yadav Sadashiv Mule (AIR 2004 SC 4377) to support the proposition that an erroneous decree is not necessarily a nullity.
The Patna High Court carefully examined these rival contentions.
On the first issue of not registering a miscellaneous case, the Court noted that the petitioner’s application dated 15.12.2017 did not mention any provision of law and did not ask for a miscellaneous case to be opened. In such a situation, and when the issue could be decided on the basis of material already on record without any detailed evidence, there was no requirement that the executing court must register a separate miscellaneous case. Therefore, this ground of attack was rejected.
On the second issue — whether the decree was a nullity because some defendants had died during the suit — the Court explained that a decree becomes a nullity in limited situations:
(i) when the court passing it lacks inherent jurisdiction;
(ii) when it is passed against a dead person whose estate is not represented; or
(iii) when it is passed in ignorance of a statutory provision or subsequent law making it inexecutable.
Even assuming for argument’s sake that some defendants had indeed died before the decree, the Court held that the decree would not be a nullity against all defendants so long as the right to sue survived against the remaining parties and the estate of the deceased was otherwise represented.
The High Court also stressed the petitioner’s conduct. Being the son of Rasulan Nessa and himself a party in the suit and the appeal, his failure to disclose his mother’s alleged death, and his act of impleading her as a respondent in the appeal, were viewed seriously. The executing court’s doubt about the genuineness of the death certificates was noted, and the High Court held that the petitioner had not approached the court with clean hands. This alone made his objection liable to be rejected.
The Court then referred to the Supreme Court ruling in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (AIR 1970 SC 1475). It reiterated the principle that an executing court cannot go behind the decree or examine whether it is legally or factually correct; it must execute the decree as it stands, unless the decree is a patent nullity due to lack of inherent jurisdiction or similar glaring defects appearing on the face of the record.
The Court also cited Topanmal Chhotamal v. Kundomal Gangaram (AIR 1960 SC 388) and Dhurandhar Prasad Singh v. Jai Prakash University (AIR 2001 SC 2552) for the established law that only decrees which are true nullities are inexecutable; erroneous decrees remain binding until set aside in appeal or revision.
Applying these principles, the High Court held that none of the recognised conditions for treating a decree as a nullity were satisfied in this case. Any grievance the petitioner had about alleged procedural defects or non-substitution of parties was a matter to be argued in the pending title appeal, not in execution.
The Court further observed that the executing court had examined every aspect, passed a reasoned order on 13.02.2018, and that supervisory jurisdiction under Article 227 could not be used to reappreciate those findings.
Accordingly, the Patna High Court affirmed the order of the Sub Judge-8, Vaishali at Hajipur and dismissed the civil miscellaneous petition. However, it clarified that the parties were free to take recourse to law in appropriate proceedings, as advised.
Why This Judgment Matters
This judgment is significant for litigants, particularly in land and property disputes, who face execution of decrees while appeals are pending.
First, it makes clear that an executing court is not meant to re-hear the whole case. It cannot stop execution simply because a judgment-debtor alleges defects in the original trial, unless the decree is a clear nullity on its face.
Second, it warns that claiming a decree is void because a party died during the case will not succeed if the deceased person’s heirs were already on record or if the objector himself stayed silent about the death earlier. Courts will look at conduct, delay, and whether the estate was represented.
Third, it reminds advocates and parties that if a party dies during a civil case, the counsel must inform the court under Order 22 Rule 10-A CPC. Failure to do so can later weaken any challenge based on that death.
Finally, for villagers and landholders, the decision shows that once a civil court passes a decree and there is no stay in appeal, execution will usually go ahead. Objections at the execution stage cannot be used as a backdoor method to stall a valid decree.
Legal Issues and Answers
- Issue: Was the executing court bound to register a separate miscellaneous case under Section 47 CPC on the petitioner’s objection and give him a full opportunity to lead evidence?
Answer: No. Since the petitioner’s application did not mention any provision or seek registration of a miscellaneous case and the issue could be decided on the existing record without elaborate evidence, the executing court was justified in deciding it within the execution case itself. - Issue: Did the decree in Title Suit No. 162 of 1998 become a nullity and non-executable because some defendants allegedly died during the suit without substitution of their legal heirs?
Answer: No. A decree becomes a nullity only in limited situations. In this case, the estate of the alleged deceased defendants was already represented by heirs on record, the right to sue survived against other defendants, and the petitioner’s own conduct undermined his claim. Therefore, the decree remained executable and could not be treated as void in execution. - Issue: Could the High Court, in Article 227 jurisdiction, interfere with the detailed and reasoned order of the executing court rejecting the objection to execution?
Answer: No. The Patna High Court held that the executing court’s order was reasoned and based on correct legal principles. Supervisory jurisdiction under Article 227 could not be used to reappreciate facts or substitute its own view in such circumstances.
Cases Cited by the Court
- Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Others, AIR 1970 SC 1475
- Topanmal Chhotamal v. Kundomal Gangaram and Others, AIR 1960 SC 388
- Dhurandhar Prasad Singh v. Jai Prakash University and Others, AIR 2001 SC 2552
- Balvant N. Viswamitra v. Yadav Sadashiv Mule (Dead) through LRs, AIR 2004 SC 4377 (relied upon by respondent no. 1)
Case Details
Case Number: Civil Miscellaneous Jurisdiction No. 562 of 2018
Case Title: Abdul Badud @ Md. Badud v. Abdul Quayum & Ors.
Citation: 2024(4) PLJR 742
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Arun Kumar Jha
Date of Judgment: 21.10.2024
Advocates:
For the petitioner: Mr. Mahesh Narayan Parbat, Senior Advocate; Mr. Ved Prakash Srivastava, Advocate; Mr. Praveen Prabhakar, Advocate
For the respondents: Mr. Naresh Chandra Verma, Advocate; Mr. Natraj Verma, Advocate
Nature of the Case: Civil miscellaneous petition under Article 227 of the Constitution of India challenging an order in an execution proceeding (Execution Case No. 4 of 2017) arising out of a title decree in Title Suit No. 162 of 1998.
Link to Judgment: Click here to read the full judgment of the Patna High Court
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