Mast Ram vs Nikke Ram & Ors

Virender Singh, J

The appellant has preferred the present Regular Second Appeal, against the judgment and decree, dated 29.10.2021, passed by the Court of learned Distric Judge, Mandi, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No. 40 of 2016, titled as, ‘Mast Ram versus Nikke Ram & others’, whereby the learned First Appellate Court has dismissed the appeal, preferred by the appellant, against the judgment and decree, dated 30.7.2016, passed by the Court of learned Civil Judge (Jr. Divn.) Chachiot at Gohar, District Mandi, H.P. (hereafter referred to as ‘the trial Court’), in Civil Suit No. 118 of 2010, titled as, ‘Mast Ram versus Nikke Ram & anr.’.

By way of CMP(M)s No. 1031 and 1033 of 2022, indulgence of this Court has been sought to bring on record the legal representatives of respondent No. 1, Nikke Ram, who as per the application, has expired on 19.6.2020, after condoning the delay, in filing the application, under Order 22 Rule 4 CPC.

Considering the fact that death of respondent No. 1 Nikke Ram, respondent No. 1, had taken place on 19.6.2020, when, the lis was pending before the learned First Appellate Court, undisputedly, the matter has been decided against a dead person.

Decree passed by the Court, for or against a dead person, is nullity. The Hon'ble Apex Court in 'Gurnam Singh (Dead) through Legal Representatives & Others versus Gurbachan Kaur (Dead) by Legal Representatives' (2017) 13 SCC 414, has observed, in para No.21, as under:-

"It is a fundamental principle of law laid down by this Court in Kiran Singh's case (supra) that a decree passed by the Court, if it is a nullity. its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a 'nullity'."

In view of the above, this Court is left with option, but to set aside the judgment and decree passed by learned First Appellate Court, and to remand the matter back to the learned First Appellate Court, for fresh disposal, in accordance with law.

Since, the lis is pending between the parties from the year 2010, as such, it is expected from the learned First Appellate Court to decide the matter expeditiously, preferably within a period of one month, from the date of receipt of the record.

With these observations, the appeal is disposed of by setting aside the judgment and decree, dated 29.10.2021, passed by the learned First Appellate Court.

Parties through their counsel are directed to appear before the learned First Appellate Court, on 15.5.2024.

Pending application(s), if any, shall also stand disposed of.

Record be sent back immediately.