THE HON'BLE MR JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION No:6589 of 2005 BETWEEN: Velicheti Venkateswara Rao S/o. Narayana, Deputy Director General, Geological Survey of India, Bangalore. PETITIONER And 1. M/s. Usha Bala Chit Funds & Investments Pvt. Ltd., (D.Hr), Dwarakanagar, Visakhapatnam, rep. By its Branch Manager, R. Pradyumna Chowdary, S/o. Ramaiah and others. RESPONDENTS Counsel for the petitioner: Sri K. Chidambaram Counsel for the respondent No.1: Mr. K.S.N. Raju Court made the following order. ORDER: The first respondent filed O.S.No.535 of 1998 in the Court of I Additional Senior Civil Judge, Visakhapatnam, against the petitioner/defendant No.2 and respondents 2 to 4 for recovery of certain amount. The suit was based upon a chit transaction between the first respondent on the one hand and the deceased second respondent on the other hand. The petitioner and respondents 3 and 4 were sureties. The petitioner remained ex parte in the suit and it was contested by respondents 3 and 4 alone. The trial Court decreed the suit on 22.05.2004. After the decree became final, the first respondent filed E.P.No.148 of 2004 against the petitioner and respondents 2 to 4. The petitioner filed E.A.No.199 of 2005 under Section 47 of C.P.C., with a prayer to dismiss the E.P. According to him, the principal borrower, i.e., the first defendant in the suit, who is the second respondent herein, died on 25.04.2001 and a decree passed against the dead person is inexecutable. The first respondent opposed the application. He pleaded that the factum of death of the second respondent was not brought to the notice of the Court. It was also pleaded that it is competent for it to proceed against the sureties also independently. Through its order, dated 14.09.2005, the trial Court dismissed the E.A. Hence the C.R.P. Heard Sri K. Chidambaram, learned counsel for the petitioner and Sri K.S.N. Raju, learned counsel for the first respondent. It is not in dispute that the first defendant, i.e., the principal borrower died during the pendency of the suit on 25.04.2001. It may be true that neither the Court nor the first respondent herein were informed about the death of the first defendant either by his counsel or by any other person. That fact, at the most, would reflect the failure on the part of the learned counsel for the first defendant to comply with Rule 10-A of Order XXII C.P.C. This, in turn, would constitute a ground for condonation of delay. However, the failure in this regard cannot validate a decree, which is otherwise invalid. It hardly needs any mention that a decree passed against a dead person is nullity. Things would have been different altogether, had it been a case, where the decree was divisible between the first defendant on the one hand and other defendants on the other. Admittedly, the decree is joint and several, this principal obligation being upon the first defendant himself. Reliance placed upon Section 128 of the Indian Contract Act, 1872, by the learned counsel for the first respondent is not relevant for the facts of this case. Assuming that it is competent for the first respondent to institute suit against the petitioner herein alone, he cannot take shelter under that provision to sustain a decree, which is otherwise nullity. Hence, the Civil Revision Petition is allowed and the order under revision is set aside. Consequently, E.A.No.199 of 2005 is allowed declaring that the decree, dated 22.05.2004 passed in O.S.No.535 of 1998 is nullity. To avoid further complications, it is made clear that it shall be open for the first respondent to file applications to set aside the abatement, to condone the delay in filing that application and to bring the legal representatives of the deceased second respondent on record. In as much as there was failure on the part of the counsel for the deceased first defendant, the Court shall use its discretion in a positive way to condone the delay in filing the application to set aside the abatement. There shall be no order as to costs. ______________________ (L. Narasimha Reddy, J.) 8th September, 2009 Js.