Nignoo Alias Niknoo (Since Deceased) Through His Lrs. & Others Vs

Rakesh Kainthla, J

RSA No.365 of 2022 a/w CMP No.17410 of 2022 CMP (M) No.1623/2022

The application bearing CMP No.17410 of 2022, has been filed for deleting the name of deceased appellant No.1(iv) Sh. Jagan Nath, who died on 11.10.2019 before the learned First Appellate Court. It is stated that his legal representatives could not be brought on record before the learned First Appellate Court. This fact came to the notice of the applicants/appellants at the time of preparation of the present appeal. The aforesaid deceased Jagan Nath is survived by his brothers S/Sh.Hari Om, Harpaul and Sh. Hardayal who are already on record as appellants No.1(i) to 1(iii). Hence, a prayer for deleting the name of deceased appellant No.1 (iv) Jagan Nath from the array of parties.

The application bearing CMP (M) No.1623/2022 has been filed for bringing on record the legal representatives of appellant No. 8(i) Sh. Malkiat Singh, who died on 09.04.2021 before the ld. First Appellate Court. It is asserted that the factum of death came to the notice of the applicants/appellants at the time of preparation of the present appeal. The aforesaid deceased Sh. Malkiat Singh is survived by his legal heirs as mentioned in Para-2 of the application. The appeal was fixed for arguments and the death had taken place after the arguments had been addressed. Hence, the present application.

Both these applications are opposed by the non-applicant/respondent.

A perusal of the record of learned Appellate Court shows that the arguments were addressed on 25th May 2022 and the judgment was pronounced on 31st May 2022. The matter was pending before the learned First Appellate Court on 11.10.2019, at the time of the death of appellant No.1(iv) Sh. Jagan Nath and on 09.04.2021, at the time of death of respondent No.8(i) Sh. Malkiat Singh.

Thus, it is apparent that judgment and decree were passed by the learned First Appellate Court in ignorance of the death of the aforesaid persons. It was laid down by this Court in Jagan Nath Versus Ishwari Devi ILR 1988 HP 362 that where a decree was passed against a dead person in ignorance of the death, such a decree is a nullity. Hon'ble Supreme Court also held in Krishna alias Ram Krishan Versus Bihari 2005 (6) SCC 300 that decree against a dead person is nullity. This Court held in Pushpa Devi Versus Purshottam Dutt 2004 HLJ 910 that when the case was disposed of in ignorance of the death, further proceedings were nullity and the question of abatement had to be decided before the court where the lis was pending on the date of the death. Similar is the judgment in Jagdish Ram Versus Shivdev AIR 2009 HP 88. This position was reiterated in Tara Wati Vs. Suman AIR 2018 H.P. 137 wherein it was held that the question whether the matter had abated or not can only be decided by the Court where the death had taken place. It was observed:

“4. On the death of a party to the suit or appeal and for want of consequential steps, suit/appeal abates because abatement is automatic after the expiry of the period prescribed for filing an application to set aside the same or substitution of legal representatives of the deceased party. In the case in hand, respondent No. 10, Sheela Devi had expired on 22.2.2013 during the pendency of the appeal in the lower appellate Court. Whether the appeal in the lower appellate Court had abated as a whole or not is a question, which could have been decided by the learned lower appellate Court alone. The limitation prescribed for taking consequential steps and setting aside the abatement stands expired long back.

Not only this but the Apex Court in a recent judgment in (2017) 13 SCC 414: (AIR 2017 SC 2419), Gurnam Singh (dead) by legal representatives and others v. Gurbachan Kaur (dead) by legal representatives, has reiterated the legal principles already settled further by holding that a decision in favour and/ or against a dead person renders such decision nullity. The Apex Court has gone one step further by holding that the decree passed without taking note of a death of a party to the lis or deciding the question of abatement and substitution of legal representatives can be challenged at any time including at its execution stage. This judgment reads as follows:

15) The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. The reasons are not far to seek.

16) It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22, Rules 3 and 4 of the Code of Civil Procedure, 1908 (for short, 'the Code') for bringing their names on record in place of the dead persons to enable them to continue the lis.

17) The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".

18) Order 22, Rule 3(2) which applies in the case of the death of the plaintiff/appellant and Order 22, Rule 4(3) which applies in the case of the defendant/respondent provides the consequences for not filing the application for substitution of legal representatives by the parties concerned within the time prescribed. These provisions read as under:—

Order 22. Rule 3(2)

"Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

Order 22. Rule 4(3)

"Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."

xxx xxx xxx

21) It is a fundamental principle of law laid down by this Court in Kiran Singh's case, 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 a defect of this nature affects the very authority of the Court in passing such a decree and goes to the root of the case. The principle, in our considered opinion, squarely applied 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 legal as well as factual position discussed supra, this Court is left with no option except to hold that the judgment and decree passed by learned lower appellate Court, without substitution of legal representatives of a dead person is a nullity, hence not legally sustainable.”

Therefore, in these circumstances, there is no option, but to set aside the aforesaid judgment and decree passed by the learned First Appellate Court and remit the matter to the learned First Appellate Court to determine the question of bringing on record the legal representatives/abatement.

Since the question of bringing on record/abatement is to be decided by the First Appellate Court, the present applications have become infructuous and are dismissed as such.

The parties are directed to appear before the learned First Appellate Court on 28.08.2023.

Accordingly, the present appeal is disposed of, so also the pending application(s), if any.