Kerala High Court · 2012

..2....CRP.NO.104/2005 RESPONDENT(S)/RESPONDENTS/DECREE HOLDER/DECEASED JUDGMENT DEBTOR:---------------------------------------------------------------------------------1. M/S.VANTAGE MARKETING, DOOR NO.1/4595 A, MALABAR BUILDING C.H.CROSS ROAD, EAST NADAKKAVU,REPRESENTED BY ITS MANAGING PARTNER P.VIJAYAN, AGED 51 YEARS, S/O. GOPALA KURUP, KULAGARAPALLIL HOUSE, KODAMMERI AMSOM DESOM, BADAGARA TALUK, KOZHIKODE DISTRICT.*2. A.R.BABU ANANTHAKRISHNAN, S/O. A.K.RADHAKRISHNAN, 5/874, KALATHINKUNNU, KOZHIKODE TALUK, KOZHIKODE DISTRICT (2ND RESPONDENT'S WHEREABOUTS ARE NOT KNOWN FOR THE LAST 7 YEARS AND 4 MONTHS). (D E L E T E D).*R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF PETITIONER VIDE ORDER DATED 13/1/2006.**ADDL.R3 IMPLEADED:R3.M.VISWANATHAN, AGE NOT KNOWN,S/O.SANKARAN, C.V. VILLA, C.H.CROSS ROAD,EAST NADAKKAVU, KOZHIKODE.(**R3 IS IMPLEADED AS PER ORDER DATED 13/01/2006 IN I.A.NO.1530/2005) R1 BY ADV. SRI.K.LAKSHMINARAYANAN BY ADV. SRI.N.L.KRISHNAMOORTHY R3 BY ADV. SRI.T.MADHU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2012, ALONG WITH CRP. 188/2008 AND CRP. 517/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:Kss “C.R.”V.CHITAMBARESH, J.-------------------------------CRP Nos. 104 of 2005, 188 of 2008 & 517 of 2008.-------------------------------Dated this the 25th day of July, 2012ORDERA desperate bid by the wife and children of a 'missing'man to salvage their residential house from being proceededagainst in execution of a decree for money.2.The allegation is that the defendant was an employeeof the plaintiff firm and had misappropriated money while inservice. The suit was filed for realisation of a sum ofRs.1,60,980/- with interest on the further allegation that thecheque later issued by the defendant was dishonoured. CrimeNo. 263/1997 on the file of the Kasaba Police station wasregistered for the alleged defalcation of money. It is concededthat the defendant who is the accused in the case is abscondingand the criminal case remains long pending. The defendantreportedly did not return home from office on 16.09.1997 andthe search for the missing person by his friends and relativesdid not yield any result. 2CRP No. 104/2005, 188/2008 &517/20083.The whereabouts of the defendant had not beenknown since 16.09.1997 according to his wife and children whoare the revision petitioners herein. It was their specific casethat two complaints were given to the police on 17.09.1997 andon 07.09.1999 about the defendant missing. The defendantcould not therefore enter appearance in the suit eitherpersonally or through counsel. An ex-parte decree forrealisation of money was eventually passed against thedefendant on 23.03.2001 which was put into execution.4.The wife and children waited for seven long years tocall in aid the provisions of Section 107 and 108 of the IndianEvidence Act, 1872 (the 'Act' for short). A presumption asregards the civil death of the defendant could be drawn as hiswife and children had not heard from him. The period of sevenyears expired on 15.09.2004 and applications were filed in thesuit on 14.10.2004. I.A. No. 4192/2004 was filed for thepurpose of impleading and I.A. No. 4193/2004 was filed to setaside the ex-parte decree. Both the applications were dismissedby a common order and are the subject matter of C.R.P.Nos.188/2004 and 517/2008. The latter case had been filed as a 3CRP No. 104/2005, 188/2008 &517/2008civil miscellaneous appeal in the lower appellate court andwithdrawn to this court for disposal.5.The house of the defendant had in the meanwhilebeen attached in execution and brought to sale which was bid inauction by a stranger purchaser. E.A. No. 284/2004 in E.P. No.398/2002 filed to set aside the sale was dismissed and affirmedin appeal by the lower appellate court. The same is alsochallenged in C.R.P. No. 104/2005 by the wife and children ofthe defendant. The auction sale had however not beenconfirmed or delivery effected in view of the interim orders inthe Civil Revision Petitions.6.I heard Ms. N. Sudha, Advocate on behalf of therevision petitioners, Mr. K. Lakshminarayanan, Advocate onbehalf of the decree holder and Mr. T. Madhu, Advocate onbehalf of the auction purchaser.7.Sections 107 and 108 of the Act read as follows:107. Burden of proving death ofperson known to have been alive withinthirty years - When the question is whether aman is alive or dead, and it is shown that he wasalive within thirty years, the burden of provingthat he is dead is on the person who affirms it.108. Burden of proving that person isalive who has not been heard of for seven 4CRP No. 104/2005, 188/2008 &517/2008years - Provided that when the question iswhether a man is alive or dead, and it is provedthat he has not been heard of for seven years bythose who would naturally have heard of him ifhe had been alive, the burden of proving that heis alive is shifted to the person who affirms it.The wife and children of the defendant could not have movedthe court below earlier since the period of seven years after thedefendant was found missing expired on 15.09.2004 only. Theapplication for impleading under Order XXII Rule 4 of the Codeof Civil Procedure, 1908 (CPC for short) was filed on14.10.2004 itself. Similarly the application to set aside the ex-parte decree under Section 46 read with Order IX Rule 13 ofthe CPC was also filed on 14.10.2004. The applications werefiled well within one month after the expiry of the period ofseven years from the date of missing. The court belowtherefore erred in dismissing the applications for impleadingand to set aside the ex-parte decree as belated.8.I am fortified in this view by the judgment of theSupreme Court in LIC of India Vs. Anuradha [(2004) 10SCC 131] wherein it is held as follows:“In the scheme of Evidence Act, thoughSections 107 and 108 are drafted as twoSections, in effect, Section 108 is anexception to the rule enacted in Section 107. 5CRP No. 104/2005, 188/2008 &517/2008The human life shown to be in existence, at agiven point of time which according toSection 107 ought to be a point within 30years calculated backwards from the datewhen the question arises, is presumed tocontinue to be living. The rule is subject to aproviso or exception as contained in Section108. If the persons, who would have normallyand in the ordinary course of human affairsheard of the person in question, have not soheard of him for seven years, the presumptionraised under Section 107 ceases to operate.Section 107 has the effect of shifting theburden of proving that the person is dead onhim who affirms the fact. Section 108,subject to its applicability being attracted,has the effect of shifting the burden of proofback on the one who asserts the fact of thatperson being alive. The presumption raisedunder Section 108 is a limited presumptionconfined only to presuming the factum ofdeath of the person whose life or death is inissue. Though it will be presumed that theperson is dead but there is no presumption asto the date or time of death. There is nopresumption as to the facts andcircumstances under which the person mayhave died. The presumption as to death byreference to Section 108 would arise only onlapse of seven years and would not byapplying any logic or reasoning be permittedto be raised on expiry of six years and 364days or at any time short of it. An occasionfor raising the presumption would arise onlywhen the question is raised in a Court,Tribunal or before an authority who is calledupon to decide as to whether a person is aliveor dead”.(emphasis supplied).9.The plaintiff firm contended that service of noticewas effected in the suit at the residential address of the 6CRP No. 104/2005, 188/2008 &517/2008defendant and that the same was proper. But Order IX Rule 13of the CPC envisages also a situation where the defendant wasprevented by sufficient cause from appearing in the suit. Thedefendant being missing could not make arrangements for hisappearance and was thus prevented by sufficient cause. This isa fit case where the ex-parte decree for money should be setaside since sufficient cause had been well established.10.The burden shifts to the plaintiff firm to show thatthe defendant was alive when his wife and children assertedthat they had not heard from him for seven years. This is thepurport and import of Section 108 of the Act as has beenjudicially explained. The mere fact that some other person hadalso filed a suit and obtained an ex-parte decree against thedefendant was not sufficient to discharge the burden. The courtbelow was bound to draw presumption as regards the civildeath of the defendant under the circumstances.11.It is of course true that the interest of a strangerauction purchaser would be protected despite the fact that theunderlying decree is set aside. The following are the oft quoteddecisions: 7CRP No. 104/2005, 188/2008 &517/2008(i)Janatha Textiles Vs. TaxRecovery Officer [(2008) 12 SCC582].(ii)Ashwin S. Mehta Vs.Custodian [(2006) 2 SCC 385].(iii)Gurjoginder Singh Vs.Jaswant Kaur [(1994) 2 SCC 368].(iv)Padanathil Rugmini AmmaVs. P.K. Abdulla [(1996) 7 SCC 668].(v)Janak Raj Vs. Gurdial Singh[AIR 1967 SC 608].But the auction sale in the instant case had not been confirmedand added to this is the fact that the auction purchaser himselfdoes not want the property. The auction purchaser has filedI.A. No. 2842/2011 in CRP No. 104/2005 seeking permission towithdraw the amount deposited by him. The auction purchaseris keen to get back the amount as he is facing two prosecutionsunder Section 138 of the Negotiable Instruments Act. There istherefore no impediment for setting aside the sale also whilesetting aside the ex-parte decree for money. I do sonotwithstanding the stiff opposition of the decree holder thatthe auction purchaser should not be allowed to wriggle out ofthe sale. 8CRP No. 104/2005, 188/2008 &517/200812.Resultantly all the three Civil Revision Petitions areallowed. The ex-parte decree is set aside and O.S. No.291/2000 on the file of the court of the Subordinate Judge ofKozhikode is resurrected to file. The wife and children of thedefendant (presumed to be dead) are brought on record assupplemental defendants in the suit. The court below isdirected to dispose of the suit on merits expeditiously within aperiod of six months from today. The auction sale conducted inexecution of the ex-parte decree is also set aside in view of theunequivocal stand of the auction purchaser. The amountdeposited by the auction purchaser shall be released to him bythe court below as and when an application for cheque is put in.The wife and children of the defendant however undertakes notto create any encumbrance over the property till the suit isdisposed of.The impugned orders are set aside and the Civil RevisionPetitions are allowed. No costs.V. CHITAMBARESH JUDGEncd