Easwara Iyer v. Vella Muthan — 1998 DIGILAW 228 (KER)

Judgment :- K.K.Usha, J. A learned single judge has referred the second appeal for consideration of a Bench taking the view that question of law arising in this case is of general importance. Short facts are as follows:- The second appeal is at the instance of the plaintiff in O.S.225/96 of the Munsiffs Court, Chittur. The suit was for a permanent injunction restraining the defendant from obstructing the plaintiff in taking tractor etc. to A Schedule property from B Schedule property, which, according to the plaintiff, is a pathway. He alleged that he has got title to A and B schedule properties. The suit was decreed and by judgment dated 20.3.1979 the defendant was restrained from obstructing the plaintiff. A.S. No. 112/ 79 was preferred before the District Court, Palghat by the defendant. The appeal was allowed by judgment dated 23.1/89. The decree for injunction was set aside and the sui t dismissed. Against the above judgment the plaintiff filed S.A.103/82. This Court dismissed the appeal in limine by judgment dated 21.6.1988. Plaintiff preferred SLP No. 11314/89 before the Supreme Court which was granted and the Civil Appeal No. 3057/95 was allowed on 20.2.1995 setting aside the dismissal of the second appeal in limine. This Court was directed to hear the matter afresh. After remand as above C.M.P. No. 2266, 2267 and 2265 of 1996 were filed by the legal heirs of the appellant to implead them as additional appellants, to set aside abatement and to condone the delay in filing the above applications. These petitions were tiled on 13.12.1996. The delay to be condoned as to the extent of 3 years and 137 days. Thereafter C.M.P. No. 1405/97 was filed on 29.8.1997 to implead the heirs of the respondent. Later, C.M.P. No. 94/98 and C.M.P. No. 93/98 were filed to set aside abatement of the second appeal on the death of the respondent and to condone the delay of 234 days in filing the application for impleading. 2. The additional respondent sought to be impleaded opposed petitions to implead legal heirs of the appellant, to condone the delay and to set aside the abatement of the appeal. It was contended that the original plaintiff/ appellant died on 27.4.1993 during the pendency of the special leave petition before the Supreme Court. 2. The additional respondent sought to be impleaded opposed petitions to implead legal heirs of the appellant, to condone the delay and to set aside the abatement of the appeal. It was contended that the original plaintiff/ appellant died on 27.4.1993 during the pendency of the special leave petition before the Supreme Court. His legal representatives did not get impleaded nor the death of the plaintiff brought to the notice of the Supreme Court. Thus, by the time the Supreme Court passed order on the special leave petition and civil appeal on 20.2.1995, the special leave petition had been abated due to the death of the sole petitioner. The order of remand passed without noting the fact that the plaintiff was no more is ineffective and nonest. The petitions for impleading to set aside abatement and to condone the delay are to be filed before the Supreme Court and not before this Court. No second appeal was pending before this Court at the time of the death of the plaintiff which would enable this Court to entertain these petitions. It was further submitted that there is no ground to condone the delay in filing the petition to implead the legal heirs of the sole respondent. The death of the sole respondent on 6.1.1997 was reported by the counsel appearing for the respondent as per memo dated 4.2.1997 filed in this Court. In spite of that the petition for impleading etc was filed only on 29.8.1997. On this ground, it is submitted that the petition to set aside abatement for the reason of the death of sole respondent and petition to condone the delay and to implead legal heirs are only to be dismissed. 3. Learned counsel for the appellant would submit that even though the order passed by Court against the dead person is a nullity, neither the party nor this Court can ignore the order of the Court and it is for the respondent to move the Supreme Court for ..clarification. Reliance was placed on the observations contained in the judgment in O.P. No. 16075/93 in support of the legal contention. In the above case, Taluk Land Board passed an order directing the declarant to surrender certain extent of land. Challenging the above order the declarant filed a revision under S.103 of the Kerala Land Reforms Act before this Court. Reliance was placed on the observations contained in the judgment in O.P. No. 16075/93 in support of the legal contention. In the above case, Taluk Land Board passed an order directing the declarant to surrender certain extent of land. Challenging the above order the declarant filed a revision under S.103 of the Kerala Land Reforms Act before this Court. While setting aside the order of the Taluk Land Board this Court directed the Taluk Land Board to hear the matter afresh and pass appropriate orders. Special Leave Petition filed by the State against the above order was allowed by the Supreme Court and the order of remand to the Taluk Land Board passed by this Court was set aside. During the pendency of the special leave petition before the Supreme Court the respondents who was the declarant had died, but his legal representatives were impleaded. O.P. No. 16075/93 was filed by the legal representatives of Subramania Iyer (declarant) seeking a writ of mandamus against the Taluk Land Board to hear the case afresh as directed by this Court in its order under C.R.P. on the ground that the order passed by the Supreme Court in the SLP was null and void, as it was passed against a dead person. While considering this question the learned single judge observed that in a collateral proceeding this Court is not entitled to ignore the order of the Supreme Court notwithstanding the fact that it was passed at a time when the respondent before that Court was dead. The legal representatives of deceased declarant has to approach Supreme Court for getting a declaration or clarification that its decision is not binding on the legal representatives. The learned single judge took the view that jurisdiction of this Court under Art.226 of the Constitution cannot be exercised in the facts of the case. 4. We do not think it is necessary for us to consider the correctness of the above decision, since, according to us, the facts in the present case are entirely different. We are not dealing with a collateral proceeding. The application for setting aside abatement etc. have been filed in the second appeal which has to be heard on merits pursuant to the order passed by the Supreme Court in the civil appeal when the appellant was dead. We are not dealing with a collateral proceeding. The application for setting aside abatement etc. have been filed in the second appeal which has to be heard on merits pursuant to the order passed by the Supreme Court in the civil appeal when the appellant was dead. According to us, the respondent is fully justified in contending that the applications for impleading legal representatives, setting aside the abatement and to condone the delay in filing these petitions are not maintainable in this Court. At the time of the death of the appellant the second appeal was not pending before this Court. Therefore, there is no question of the second appeal getting abated. The second appeal had been already dismissed and it was a special leave petition before the Supreme Court that was pending at the time of death of the appellant. The proceedings that have become abated are the proceedings which were pending before the Supreme Court and not before this Court. It is not disputed before us that a judgment of an order passed in favour of a dead person or against a dead person is nonest in the eye of law. The contention raised by the appellant is that such objection has to be taken by the respondent by filing appropriate applications before the Supreme Court. We are not able to accept the above contention. According to us, C.M.P. Nos. 2266,2267 and 2265 of 1996 are not maintainable before this Court. Of that be so, there is no question of considering C.M.P. Nos. 1405/97,94/98 and 93/98 filed for the purpose of impleading the legal heirs of the respondent, to set aside the abatement on the death of the sole respondent and to condone the delay in filing the petitions. 5. We find a similar question had arisen in Jivibeg Lavji Ragagath v. Jadavji Devabanker and Ors. AIR 1978 Gujarat 32,. In that case the plaintiff died during the pendency of the second appeal filed by him before the High Court. Without being aware of the death of the appellant-plaintiff the High Court reversed the judgment and decree of dismissal of the suit passed by the Court below and decreed the suit for possession. Objection was raised in the execution by the judgment debtor contending that the decree in favour of the plaintiff having passed after his death was a nullity and therefore, not executable. Objection was raised in the execution by the judgment debtor contending that the decree in favour of the plaintiff having passed after his death was a nullity and therefore, not executable. This contention was sustained by the High Court. An observation made by the Supreme Court in Him Lai v. Kali Nath, AIR 1962 SC 199, was relied on by the learned judges of Gujarat High Court. The relevant portion of the observation reads as follows: "The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seize in of the case because the subject matter was wholly foreign toils jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of tiie suit or over the parties to it." Reference was also made to a decision of the Bombay High Court in Amarsingji v. Desai Umed, AIR 1925 Bom. 290, where it has been held that on the death of the sole appellant the appellate court had no really jurisdiction to hear the appeals as there was no appellant before it. 6. We are not impressed by the contention raised on behalf of the appellant that even if the petitioner in the special leave petition before the Supreme Court had died during the pendency of the petition the order in the civil appeal will still be binding on this Court and the parties in view of Art.141 of the Constitution of India. The order in the SLP setting aside the dismissal of the second appeal in limine and remanding the matter for fresh consideration on merits by this Court cannot be considered as 'law' declared by the Supreme Court as contemplated by Art.141 of the Constitution. In any view of the matter there is no reason for the appellant to refuse to file the petitions for setting aside the abatement, impleading and to condone the delay before the Supreme Court, since the appellant died when the matter is pending before the Supreme Court. In any view of the matter there is no reason for the appellant to refuse to file the petitions for setting aside the abatement, impleading and to condone the delay before the Supreme Court, since the appellant died when the matter is pending before the Supreme Court. We are not able to accept the contention of the appellant that it is for the respondent to move the Supreme Court for appropriate clarification. We, therefore, dismiss C.M.P. Nos. 2266 and 2265 of 1996. 7. Since we have found that C.M.P. Nos. 2266, 2267 and 2265 of 1996 are not maintainable before this Court and since the legal heirs of the appellant are not impleaded in the appeal, we find that C.M.P. Nos. 1405/97,94/98 and 93/98 filed by the petitioners sought to be impleaded are also to be dismissed. We, therefore, dismiss C.M.P. Nos. 1405/97,94/98 and 93/98. The Second Appeal stands dismissed.