Tej Narain Singh @ Bhukloo Raut vs (D.R.) Krishna Kant Singh and Others

S. Shamsul Hasan, J.—The petitioner is the unsuccessful appellant of Second Appeal No. 296 of 1971.

The solitary ground on which review is sought; of the judgment m the aforesaid appeal is that while the judgment was delivered on 23-10-1981, Rajendra Prasad Singh, respondent No. 1 in the second appeal, died on 22-10-1981, that is, one day before. The appeal was, however, dismissed and the deceased-respondent was endowed with a successful decree in the appeal.

The petitioner relied on a decision of this Court in the case of Nathmal Khandelia v. Smt. Janki Devi 1983 B.L.J.R. 517 in which succinctly stated it has been held that a decree passed in favor of a deceased-respondent by the dismissal of the appeal will be a nullity in the absence of the heirs of the deceased-respondent whose valuable right by their not being brought on the record has been defeated.

The decision of choice, however, on this question is one of the Supreme Court in the case of N. Jayaram Reddy and Another Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, . Paragraphs 5 and 6 of that decision are relevant for the purpose of this application.

But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased respondent, there is no justification for Mr. Sen''s further argument that the High Court''s decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddi. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of '' being heard in respect of it, and the legal representative cannot be condemned unheard. So if a respondent to an appeal dies and the appeal abates because of the failure, his legal representative on the record within the time limited by law, and the appellate court loses sight of the development or ignores it, will still be permissible for the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for condemnation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. The law has, therefore, provided, and accepted, modes for reopening and hearing the appeal in such cases.

The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So, while the law treats such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely of the discretion of the legal representative of the deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will ensure for the benefit of or be sufficient for the purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by any one.

But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it willfully....

As I understand, the ratio of this decision 2 (supra) a decree against a dead person becomes a nullity only because the decree cannot be enforced against the heirs of the deceased, who are not parties. Such a decree, however, is not void and is violable at the instance of the heirs of the deceased party against whom the decree has been passed. The High Court is not precluded from hearing an appeal against the decree passed against a dead person It is also open to the High Court to allow the substitution in the High Court after coadunation of delay or to remand the matter to the court which passed the decree against a dead person to take steps in this regard if an objection is raised by the heirs. From the aforesaid conclusions by inferential implication a decree in favor of a dead person can never be held to be a nullity. There is no decree to be executed against the heirs of a dead person. The heirs of the dead person are beneficiaries of a successful decree and if a decree against a dead person is violable at the instance of the heirs of the deceased, surely a decree in favor of a dead person is on a much higher footing. No heir of a deceased respondent in whose favor a decree has been passed will ever want to get it upset and surely the appellant, who has failed in the appellate court, cannot take advantage of a decree in favor of the deceased person to get adverse decision set aside and the appeal re-heard.

The decision of this Court by S.B. Sanyal, J. in the case of Nathmal Khandelia (supra), relied upon by the appellant, did not notice the afore-mentioned Supreme Court decision and the implications flowing from it, perhaps, because, as it appears from the report, the parties to the proceeding before S.B. Sanyal, J. did not bring this Supreme Court decision to the notice of the Court. In any event, in the light of the Supreme Court decision, the decision of S.B Sanyal, J. (supra) cannot come to the assistance of the petitioner.

There is no merit in this application for review and it is, accordingly, dismissed with costs.