Ramji Lal and others vs Hira and others

A.S. Bains, J.—This is an application under Order 22, rule 4 read with section 151 of the CPC filed by the legal representatives of Hira respondent (since deceased) in R.S.A. No. 174 of 1969 decided on 6th August, 1980. It is alleged in the application that Hira was the sole contesting respondent, who died on 1st October, 197 in Ellenabad District Sirsa; that the appellants did not bring the legal representatives of the said respondent on record as parties upto the final hearing of the appeal and as a result the appeal automatically abated. It is further alleged in the application that at the time of hearing of the appeal on 6th August, 1980, the counsel for Hira respondent did not know about the factum of the death of Hira nor did the counsel for the appellants bring it to the notice of the Court and as a result the appeal was heard and decided without the notice of death of Hira. It is also alleged that after the decision of the appeal the respondent''s counsel sent information about the decision of the case to Parkash Chander (respondent Hira''s son), who had accompanied his father at the time of engaging him as a counsel and that in response to the letter sent by the counsel, Parkash Chander came to Chandigarh and informed the counsel that his father Hira bad died in the year 1972, and that he did not receive any earlier letters regarding the hearing of the appeal. It is in these circumstances that the present application has been filed for recalling the order dated 6th August, 1980, and declaring the appeal as abated in toto

Admittedly, the factum of death of Hira respondent in the year 1972 is not denied by the counsel for the appellants, but the counsel stated that the appellants came to know about the death of Hira only after the filing of the present application and, therefore, appeal cannot be dismissed as having abated. Since the appeal was allowed against a dead person, the order dated 6th August, 1980, cannot be sustained and is to be set aside as no decree can be passed against a dead person. The similar matter arose in Mst. Dhani v. Gian Chand 1973 P.L.J. 451 wherein it was observed by their Lordships of the Division Bench as under :--

It is well settled that a Court has inherent jurisdiction to correct its previous illegal order or judgment. Where an order or decree is passed against a dead person, it may either be because of the ignorance of the Court about his death or on account of fraud practised by the opposite party. If it is on account of ignorance, then it is a mistake which the Court ought to rectify; but if it is because of the fraud, the Court even then has ample power u/s 151, Civil Procedure Code, to prevent the abuse of its process by not permitting the decree or order to stand, and it will be one of the fittest cases for the exercise of such jurisdiction. There is thus consensus of judicial opinion that an order or decree passed against a dead person can be reopened and set aside by a Court in exercise of its inherent jurisdiction u/s 151, Civil Procedure Code.

Reliance was placed by Mr. Bali, learned counsel for the appellants, on AIR 1928 784 (Lahore) This case was noticed by the Division Bench and also by the Single Bench of this Court and its facts are distinguishable from the facts of the present case, in that case the suit had been decided before it had abated. In the present case the appeal had been decided after the abatement. Therefore, the observations in the aforesaid Division Bench authority (Supra) are fully applicable.

For the reasons recorded this application is allowed and the judgment and decree of this Court dated 6th August, 1980, in R.S.A. No 174 of 1969 is recalled and the appeal is dismissed as abated, but there will be no order as to costs.