The Kangra Central Co-Operative Bank Limited vs Chint Ram and others

V.K. Sharma, J.—The petitioner-bank had filed a suit for recovery of Rs. 1,06,997/-alongwith interest @ 9.75% per annum against respondents No. 1 and 3 and predecessor-in-interest of respondents No. 2(a) to 2(g) and the same was decreed vide judgment and decree dated 07.04.2010 (Annexure P-1). Whereas respondent No. 1, Chint Ram, was the principal debtor, predecessor-in-interest of respondents No. 2(a) to 2(g), namely, Kanshi Ram and respondent No. 3, Banshi Ram, were the guarantors. Consequently, the petitioner-bank filed an execution petition for implementation of the aforesaid judgment and decree dated 07.04.2010. A copy of the execution petition has been brought on record as Annexure P-2. It was during pendency of the execution petition that the petitioner-bank moved an application under Order 22 Rule 10-A seeking to bring on record legal representatives of deceased JD No. 2, late Shri Kanshi Ram. However, the prayer was opposed by respondent No. 3, Banshi Ram, on the ground that in the first instance, the property belonging to the principal debtor, respondent No. 1, Chint Ram, who is an ex-Indian Army personnel and is also receiving pension, which is sufficient to satisfy the decree, should be attached.

On consideration of the matter, the learned trial court concluded that since respondent No. 2, KanshiRam, had died during pendency of the suit, the impugned judgment and decree dated 07.04.2010, having been passed against a dead person were nullity. In this regard the learned trial court placed reliance upon a judgment of this Court reported as G.S. Chahal and Others Vs. Punjab National Bank and Others,

I have heard the learned counsel for the petitioner and the respondents, who are present in person through Mr. Romesh Verma, Advocate, who has been requested to act as Amicus Curiae for them.

A bare perusal of the operative part of the aforesaid judgment dated 07.04.2010 would go to show that the same and the resultant decree were passed against the defendants, who are respondents No. 1 and 3 herein and predecessor-in-interest of respondents No. 2(a) to 2(g) herein, jointly and severally. It being so, even it is assumed for a moment for the sake of argument that the judgment and decree against Kanshi Ram, predecessor-in-interest of respondents No. 2(a) to 2(g), were nullity having been passed against a dead person, the same were essentially severable and cannot be said to be a nullity as apart from said Kanshi Ram two other defendants were also there, against whom the decree was passed jointly and severally and could have very well been executed against them.

In view of the above, the impugned order dated 09.06.2011 is quashed with a direction to the learned Executing Court to restore the execution petition to its original number on its files and proceed further in the matter against the surviving judgment debtors, namely, Chint Ram and Banshi Ram, respondents No. 1 and 3 herein, in accordance with law.

Let a copy of this judgment be sent forthwith to the learned Executing Court for information and compliance.

The petition stands disposed of.