Neel Mani & Ors vs Gita Ram & Ors

Virender Singh, J

Applicants have preferred the Regular Second Appeal against the judgment and decree dated 27.07.2022, passed by the Court of learned Additional District Judge(I), Mandi, District Mandi, H.P. (hereinafter referred to as the ‘learned First Appellate Court’) in Civil Appeal No.55 of 2014 titled as ‘Gita Ram & Anr. Vs. Neelmani & Ors.’.

During the pendency of appeal, applications, under Order 22 Rule 4, read with Rule 9 and 11 CPC, have been moved for bringing on record LRs of deceased respondent No.29-Rewati Devi and respondent No.35-Bhikham Ram. As per applications, respondent No.29-Rewati Devi and respondent No.35-Bhikham Ram have expired on 17.03.2022 and 05.03.2019, respectively.

Learned counsel, appearing for respondents No.1 and 2, has pointed out that death of the said respondents had taken place, when the lis was pending, before the learned First Appellate Court. As such, decree passed by the Court for or against a dead person is nullity.

Undisputedly, the matter has been decided against dead persons, as, no efforts have been made to bring on record LRs of Smt. Rewati Devi and Sh. Bhikham Ram. 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 & Ors. Vs. 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 has left with no option, but, to set aside the judgment and decree passed by the 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 2008, as such, it is expected from the learned First Appellate Court to decide the matter expeditiously.

With these observations, the judgment and decree dated 27.07.2022, passed by the learned First Appellate Court, is set aside.

Parties, through their counsel, are directed to appear, before the learned First Appellate Court, on 29.05.2024.

Record be sent back, immediately.