No Fresh Summons Needed For Legal Heirs If Suit Was Already Proceeding Ex-Parte Against Deceased Defendant: Allahabad High Court

"When substitution of the heirs of the original defendant was not necessary for the reason that the suit was already proceeding ex-parte... there was no necessity of issuing any fresh summons to the heirs of the original defendant." Allahabad High Court, in a significant ruling, held that once a civil suit is proceeding ex-parte against a defendant, there is no legal requirement to issue fresh summons to their legal representatives upon substitution if the defendant dies during the pendency of the suit.

A single-judge bench of Justice Subhash Vidyarthi observed that since the original defendant was not contesting the eviction suit, an ex-parte decree passed after his death cannot be termed a nullity merely because fresh summons were not issued to the substituted heirs.

A landlord filed an eviction suit against a tenant, Ram Bharose Verma, who failed to appear before the trial court despite the service of summons, leading the court to proceed ex-parte. The tenant died during the pendency of the suit, and his legal heirs were substituted after notices sent to them were deemed served by refusal. The trial court subsequently passed an ex-parte eviction decree, which the legal heirs challenged in execution proceedings under Section 47 of the Civil Procedure Code (CPC), arguing that the decree was a nullity.

The primary question before the court was whether an ex-parte decree becomes a nullity if fresh summons are not issued to the legal representatives substituted after the original defendant's death. The court was also called upon to determine whether an executing court under Section 47 of the CPC can examine the validity of the original summons or the landlord's use of a Power of Attorney to file the suit.

Practice Of Impleading Courts Deprecated

At the outset, the court took strong exception to the petitioners impleading the Additional District Judge and the Judge, Small Causes Court as opposite parties in the petition. Relying on Supreme Court precedents, the bench reiterated that civil courts do not defend their orders before superior courts and are not necessary parties. The bench noted that high courts can summon records without impleading the presiding officer as a party to the litigation.

Ex-Parte Proceedings And Substitution Of Heirs

Addressing the core procedural challenge, the court examined Order XXII Rule 4(4) of the CPC. The bench observed that the trial court was legally empowered to exempt the plaintiff from the necessity of substituting legal representatives since the original defendant had failed to appear. The court noted that under the statutory framework, the suit could have been decreed ex-parte without even carrying out the substitution of the deceased tenant's heirs.

No Fresh Summons Required For Substituted Heirs

The court held that since the substitution itself was technically unnecessary under the law, the non-issuance of fresh summons to the heirs after they were brought on record did not vitiate the proceedings. The bench pointed out that notices on the substitution application had already been served upon the heirs by refusal. The court categorically ruled that the ex-parte judgment cannot be considered void when the original defendant was already not contesting the suit.

"In these circumstances, the ex-parte judgment and decree dated 16.09.2013 cannot be said to be nullity for non-issuance of any fresh summons to the substituted heirs of the original defendant after their substitution..."

Executing Court Cannot Go Behind The Decree

Dealing with the petitioners' objections regarding the alleged improper service of the original summons and the landlord filing the suit through a Power of Attorney, the court firmly laid down the jurisdictional limits under Section 47 of the CPC. The bench emphasised that the executing court cannot re-examine factual findings or the satisfaction recorded by the trial court. The court noted that since the petitioners never filed a revision under Section 25 of the Provincial Small Causes Courts Act against the original decree, these pleas were barred in execution proceedings.

Heirs Inherit Tenancy As Joint Tenants

The court also addressed the claim of one of the heirs who argued she was not properly substituted due to a typographical error in her name, where she was recorded as "Heena" instead of "Hema". Relying on Section 3(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the court observed that in residential buildings, only heirs who normally resided with the deceased tenant inherit the tenancy. The bench noted there were no pleadings to prove she resided with her father at the time of his death.

Notice To One Joint Tenant Is Notice To All

Relying on the Supreme Court's decision in Harish Tandon v. ADM, the court clarified that heirs of a deceased tenant succeed as joint tenants, not as tenants-in-common. The bench laid down that even if there was a technical defect in serving notice to one joint tenant, it would not render the eviction decree a nullity when notices were properly served on the other joint tenants who equally represent the estate.

"The petitioner no. 2 being merely one of the several joint tenants, even in case there was any defect in service of notice upon her, it would not make the decree passed against all the joint tenants a nullity when the notices were served on the other joint tenants."

Typographical Error Does Not Render Decree Null

The court dismissed the argument regarding the misspelt name, observing that the trial court had already corrected this typographical error by exercising its powers under Section 152 of the CPC. The bench concluded that a mere spelling mistake does not affect the legal validity of the decree, especially since the heirs were duly served and had full knowledge of the eviction proceedings.

Finding no jurisdictional error or legal infirmity in the orders of the courts below, the High Court dismissed the petition at the admission stage. The ruling reinforces the sanctity of ex-parte decrees passed against deceased defendants and strictly limits the scope of objections that judgment debtors can raise before an executing court.

Date of Decision: 05 January 2026