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2005 DIGILAW 98 (HP)

G. S. CHAHAL v. PUNJAB NATIONAL BANK

2005-04-18

K.C.SOOD

body2005
JUDGMENT K.C. Sood, J. RFA No. 113 of 2005 and CMP No. 630 of 2003. RFA be registered. This first appeal arises out of the judgment and decree of learned District Judge, Solan, dated 24th June, 2003. 2. It is admitted position that Shri J.S. Chahal who was contesting defendant before the learned trial Court expired, on 5th December, 1997, during the pendency of the suit before the learned District Judge. The impugned judgment and decree was passed in ignorance of the death of Shri J.S. Chahal, defendant No. 2. 3. The appellants in this appeal have moved an application for permission to the appellants including legal heirs of deceased defendant Shri J.S. Chahal (applicants No. 2 to 5) to maintain the present appeal as legal heirs of deceased Shri J.S. Chahal. 4. It is well settled that where a party dies pending suit or appeal and judgment/decree is passed in ignorance to such death, then such judgment/decree is nullity. The question of substitution of legal heirs and setting aside the abatement, if any can only be considered by the Court, before whom the suit was pending when the death of the deceased defendant took place. It hardly needs any emphasis that appeal against dead person is nullity. The application filed by the appellants, in the circumstances, is not maintainable. The question of abatement and substitution has to be addressed before the trial Court. 5. In the facts and circumstances, the impugned judgment and decree of the learned District Judge is set aside. The case is remitted back to the learned District Judge, Solan with the directions that he shall consider the question of abatement, after hearing parties, and pass appropriate orders. Needless to say, if any application is filed by the respondents, for substitution of the legal representatives of deceased defendant No. 2 Shri J.S. Chahal before the trial Court, such application shall be considered at its own merit by the learned District Judge. Order accordingly. 6. The parties are directed to appear before the learned District Judge, Solan, on 23rd May, 2005. Records, if any, shall be sent back to that Court forthwith. 7. The appeal as well as miscellaneous application shall stand disposed of accordingly. Appeal disposed of.