Ganesan and Others vs Perumal Gounder and Another

S.S. Subramani, J.—This unnumbered Revision is filed against the Order passed in I.A.No. 279 of 1990 in I.A.No. 2783/86 in O.S.No.

1387 of 1982, on the file of the District Munsif, Salem, dated 27.9.1993.

One Krishnan was the second respondent in that application. He died on 10.8.1993, i.e., before the Order was passed by the lower Court.

But, without knowing the death, the Order has been passed.

After obtaining a certified copy of the Order, the legal heirs of Krishnan have filed this Revision with an application to set aside the abatement

and also to condone the delay in filing the said application to set aside the abatement.

It is seen that no steps were taken before the lower Court for impleading the legal heirs of Krishnan.

In this Revision, when the Applications were filed to set aside the abatement and also to condone the delay, the Registry felt a doubt about the

maintainability of those Applications. Accordingly, it was directed to be posted before Court.

I heard the learned counsel for the petitioner regarding the same.

According to me, the Application filed by the petitioners for setting aside the abatement and also to implead the legal heirs before this Court, are

not maintainable. The impleading before this Court can be had only if the death happened while the matter was pending before this Court.

Admittedly, Krishnan died before the Order was passed by the Lower Court. But that fact was not noted at that time.

Similar question came up for consideration in Mrs. Gladys Coutts Vs. Dharkhan Singh and Others, . In that case, during the pendency of the

first appeal, one of the respondents died. But this was not noted at the time of deciding the case. When the matter came up in Second Appeal

before the High Court, an Application was filed for setting aside the abatement and also for substitution of the legal heirs. Their Lordships held

thus:-

Where during the pendency of first appeal, one of the respondents dies and the case cannot proceed by reasons of the death of one of the parties,

the whole appeal abates and a decree passed in respect of the dead person without impleading his legal representatives is nullity.

When the same question came up for consideration before the same High Court, in Muna Devi and Another Vs. Ram Jhari Devi and Others, , their

Lordships held thus:-

If during the pendency of an appeal in the High Court from a decision of the lower Court it is discovered or found that a particular necessary party

died when the case was pending in the lower Court, there is no difficulty in setting aside the decree of the lower Court, whether it be of the trial

Court or of any appellate Court, and remitting the case back .to the Court for giving an opportunity to the party to file an application for setting

aside abatement and substitution of the heirs of the deceased party. But where by virtue of an order of remand passed by a Division Bench of the

High Court in exercise of its inherent powers, an appeal is allowed and it has been found that one of the parties has died during the pendency of the

second appeal before the said Bench, it would not be legitimate or proper for another Bench of the Same High Court to set aside the order of

remand passed by the Bench and to direct the restoration of that appeal in order to give a chance to the appellant to file an application in that

appeal for setting aside the abatement and substitution of the heirs of the deceased party.

In Kanailal Manna and Others Vs. Bhabataran Santra and Others, also, one of the plaintiffs died while the matter was pending before the trial

Court. But the Court was ignorant about the death and passed a decree. In appeal, the legal heirs of the deceased were sought to be impleaded. In

these circumstances, their Lordships held thus:-

Where one of the plaintiffs dies even before the appeal filed against a joint decree passed in their favour is heard by the lower appellate Court and

the Court in ignorance of the death, dismisses the appeal and passes a decree, the decree abates and cannot be considered in law to be effective in

any way. The High Court in Appeal against such a decree cannot itself set aside the abatement nor it can affirm the decree passed by the trial

Court. The proper procedure to be followed by the High Court is to set aside the ineffective decree and remand the case to the Court where

abatement has taken effect, keeping it open to the parties to move that Court for an opportunity to have the abatement set aside if the parties could

satisfy it that they are so entitled in law.

In AIR 1971 P&H 477 Kanailal Manna and Others Vs. Bhabataran Santra and Others, .

In 1976 K.L.T. 101 (Assvamma v. Ainabi), a similar question came up for consideration, and the learned Judge held thus:-

On the death of the 2nd respondent, the appeal had abated and the decree passed by the first appellate Court in ignorance of this fact in the eye

of the law is a nullity. Strictly speaking, there was no decree to be appealed against. The proper course in the circumstances to be adopted is to set

aside the ineffective decree of the first appellate Court, giving the appellant herein an opportunity to take such steps as are necessary to have the

abatement set aside, if she is entitled to do so, and to have the matter proceed with after bringing on record the legal representative of the

deceased second respondent.

Following the principles enunciated in the above decisions, I have to hold that the Applications filed before this Court are not maintainable. The

impugned order passed by the Court below in ignorance of the death of the second respondent is a nullity, since the Order passed is against a

dead person. In that view, I have to set aside the Order and direct the lower Court to implead the legal heirs. In this case, the question of

abatement may not arise since the proceedings are after preliminary decree. But since the Order is against a dead person, that will have no legal

force. Strictly speaking, there is no order to be revised against. The proper procedure in the circumstances to be adopted is to set aside the

ineffective order of the Lower Court, give the petitioner herein an opportunity to take such steps that are necessary to have the legal heirs

impleaded. In this case, the petitioners are the legal heirs of the defendant. Either they themselves can come before the Court below, or they can

direct the plaintiff to implead the legal heirs in the place of the deceased second defendant. The C.R.P.S.R. is ordered accordingly.