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2018 DIGILAW 2101 (HP)

Ram Swaroop v. Bal Kishan

2018-11-28

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Looking to the nature of order, I propose to pass, it is not at all necessary to refer to the facts in detail. Suffice it to state that the plaintiff/respondent filed a suit for declaration with consequential relief of permanent prohibitory injunction which was decreed by the learned trial Court holding the plaintiff to be co-owner and in possession to the extent of 1/10th share in land measuring 30 bighas 12 biswas. 2. The defendants filed an appeal before the learned first appellate Court. However, the same was dismissed vide judgment and decree dated 11.12.2015, constraining the appellant/defendant to file the instant regular second appeal. 3. The appeal is at the stage of consideration of application for condonation of delay as the same is barred by 100 days. However, when the notices were issued in this application, it was reported that some of the parties to the lis i.e. respondent No. 1 and respondent No. 13 have died before the filing of the present appeal whereas respondent No.2 died on 27.8.2014 when the appeal was pending adjudication before the first appellate Court. 4. Civil Miscellaneous Petition (M) No.1216 of 2017 has been filed for bringing on record the legal representatives of deceased respondent No.13 alongwith application for condonation of delay being CMP(M) No.1218 of 2017, application for bringing on record the legal representatives of deceased respondent No.2 alongwith application for condonation of delay being CMP(M) Nos. 1217 and 1219 of 2017 and application for bringing on record the legal representatives of deceased respondent No.1 alongwith application for condonation of delay being CMP(M) Nos. 1220 and 1221 of 2017 have been filed by the appellant. 5. However, since the appeal had already abated before the learned first Appellate Court, therefore, this Court need not consider and decide all these applications as there is no legally constituted appeal before this Court. 6. It is more than settled legal proposition that decree in favour or against a dead person is a nullity as was held by a Bench of three Hon''ble Judges of the Hon''ble Supreme Court in Kishun alias Ram Kishun (dead) through L.Rs. vs. Bihari (D) by L.Rs , (2005) AIR SC 3799. 7. 6. It is more than settled legal proposition that decree in favour or against a dead person is a nullity as was held by a Bench of three Hon''ble Judges of the Hon''ble Supreme Court in Kishun alias Ram Kishun (dead) through L.Rs. vs. Bihari (D) by L.Rs , (2005) AIR SC 3799. 7. Further, the question as to whether the appeal has partly or as a whole abated was a question that could only be adjudicated upon by that Court where the abatement had taken place. 8. It is trite 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 ShimLC 273 and Karam Chand and others v. Bakshi Ram and others , (2002) 1 ShimLC 9 ). 9. In view of the aforesaid exposition of law, the judgment and decree passed by the learned first appellate Court against a dead person i.e. respondent No.2 is a nullity and as such the same is set aside. The case is remanded back to the learned first appellate Court with a direction to allow the defendant/appellant to take consequential steps for bringing on record the legal representatives of deceased respondents No. 1, 2, and 13 and while deciding the question of substitution of legal representatives of respondent No.2 decide the question of abatement of the appeal, if any, after affording the parties due opportunities of being heard. 10. The parties through their counsel(s) are directed to appear before the learned first appellate Court on 17.12.2018. 11. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. All pending applications also stand disposed of with liberty reserved to the appellant to move fresh applications for bringing on record the legal representatives of deceased respondents No.1 and 13 before the learned first Appellate Court. 11. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. All pending applications also stand disposed of with liberty reserved to the appellant to move fresh applications for bringing on record the legal representatives of deceased respondents No.1 and 13 before the learned first Appellate Court. If these applications are filed, they shall be deemed to have been filed on 23.8.2017 and in case the application for bringing on record the legal representatives of deceased respondent No.2 filed alongwith application for condonation of delay and setting aside abatement, the same shall be deemed to have been filed on 24.8.2018 as these applications were filed before this Court on the aforesaid dates.