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2018 DIGILAW 1334 (HP)

Balraj Kumar v. Rameshwar Dutt (deceased)

2018-07-18

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - It is not in dispute that respondent No.2 - Mool Raj died on 27.4.2004 when the proceedings were, in fact, pending before the first appellate court. It is also not in dispute that his legal representatives were not brought on record before that court. Thus, the proceedings before the first appellate court had abated. Once that be so, obviously, the judgment and decree passed by the learned first appellate court even in favour of a dead person is nullity. 2. Noticeably, even the respondent No.1Rameshwar Dutt died on 25.6.2016 and an application bearing CMP(M) No. 1449 of 2017 for bringing on record his legal representatives was filed and the same was allowed after condoning the delay and setting aside abatement. 3. Now, the further question as to whether the appeal has abated as a whole or has partly abated against deceased Mool Raj is a question to be adjudicated upon by that court where the abatement has taken place. 4. It is settled law that as and when the question of abatement of suit or appeal arises, such question can only be gone into and decided by the Court where the suit or the appeal was pending at the time of death of a party. (Refer: 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 ). 5. Equally, settled is the legal proposition that decree in favour or against a dead person is a nullity. (Refer: Kishun alias Ram Kishun (dead) through L.R.s v. Bihari (D) by L.R.s, AIR 2005 SC 3799 ). 6. Consequently, the judgment and decree passed by the learned first appellate Court in favour or against a dead person is nullity, as such, the same is set aside. Once the judgment is nullity, obviously, then this Court has no jurisdiction even to decide the application moved by the appellants for bringing on record even the legal representatives of deceased respondent No.1. Once the judgment is nullity, obviously, then this Court has no jurisdiction even to decide the application moved by the appellants for bringing on record even the legal representatives of deceased respondent No.1. Therefore, the case is remanded back to the learned first appellate Court with a direction to allow the appellants to take consequential steps for bringing on record the legal representatives of deceased respondent No.2Mool Raj and further decide CMP(M) No. 1449 of 2017 that has been filed for bringing on record the legal representatives of deceased respondent No.1 and thereafter decide the question of substitution of legal representatives as also the question of abatement of the appeal, if any, after affording the parties due opportunity of being heard. In case the appeal is held to be maintainable then needless to say that the learned first appellate Court shall decide the same afresh in accordance with law. 7. The parties through their counsel(s) are directed to appear before the learned first appellate Court on 6.8.2018. 8. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. All pending applications also stand disposed of.