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2018 DIGILAW 1220 (HP)

Tara Wati v. Suman

2018-07-05

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Respondent No.12 is duly served, however, there is no appearance on their behalf, hence proceeded against exparte. 2. In this appeal, an application registered as CMP No.8 of 2018 has been filed under Order 1 Rule 10 CPC for deletion of the name of respondent No.10, who has expired on 22.2.2013 i.e. during the pendency of the appeal in the lower appellate Court. The application is supported by death certificate Annexure A-1. The record available, at this stage, reveals that deceased respondent No.10 (defendant No.11 in the trial Court) has not only contested the suit but also the appeal in learned lower appellate Court. The appeal, however, came to be decided without taking note of her death and substitution of her legal representatives as well as deciding the question of abatement of the proceedings, if any. 3. As a matter of fact, on the death of respondent-defendant Sheela Devi and for want of requisite steps, the appeal before learned lower appellate Court stood abated automatically, however, only qua deceased respondent or as a whole, is a question which could have been considered and adjudicated by that very Court. Anyhow, the factum of death of deceased respondent Sheela Devi went unnoticed and learned lower appellate Court has decided the appeal without substitution of her legal representatives and deciding the question of abatement of the appeal. In view of the law laid down by this Court, as and when the question of abatement of the suit or appeal arises, the same can only be gone into and decided by the Court where the suit or appeal was pending at the time of death of a party. It has been held so by this Court in Jaswant Singh versus State of Himachal Pradesh and others, 2015(2) Shim.L.C. 674 while placing reliance on the ratio of the judgments rendered by Co-ordinate Benches of this Court in Jagan Nath and others v. Ishwari Devi, 1988(2) Shim.L.C. 273 and Karam Chand and others v. Bakshi Ram and others, 2002(1) Shim.L.C. 9 . 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 deceased party. 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 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 learned lower appellate Court alone. The limitation prescribed for taking consequential steps and setting aside the abatement stands expired long back. 5. Not only this, but the apex Court in a recent judgment in (2017) 13 SCC 414 , Gurnam Singh (dead) by legal representatives and others versus 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 went 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. (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 plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of defendant/respondent provides the consequences for not filing the application for substitution of legal 6 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 xxx xxx xxx (21) It is a fundamental principle of law laid down by this court in Kiran Singh 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 the defect of this nature affects the very authority of the Court in passing such 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’.” 6. 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’.” 6. 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 nullity, hence not legally sustainable. 7. Consequently, the judgment and decree passed by learned lower appellate Court being nullity is quashed and set aside. The case is remanded to the lower appellate Court with a direction to allow the appellant to take consequential steps on the death of respondent No.10, Sheela Devi and thereafter to decide the question of substitution of her legal representatives, if any, and also the question of abatement of the appeal after affording the parties due opportunity of being heard. The appeal thereafter be decided afresh, in accordance with law. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 10th August, 2018. 8. The appeal stands disposed of accordingly. Pending applications, if any, shall also stand disposed of. An authenticated copy of this judgment be sent to learned lower appellate Court for record/compliance.