JUDGMENT : Vivek Singh Thakur, J. 1. Appellant/plaintiff has approached this Court assailing concurrent finding of the Courts below. Suit as well as appeal filed by him have been dismissed by the trial Court and first Appellate Court respectively. Respondents or their predecessors-in-interest are/were defendants in the suit. Parties, for convenience shall be referred as plaintiff and defendants. 2. Civil Suit filed by plaintiff on 3.8.2004, seeking declaration that he has acquired ownership right in the suit land by way of adverse possession, was dismissed on 30.9.2013 by the trial Court. Appeal preferred by plaintiff on 2.11.2013 has also been dismissed by first Appellate Court on 23.2.2019. 3. On filing present appeal on 22.5.2019, notices were issued to the respondents and during service of respondents, notices issued to respondent No. 7 Nek Singh and Respondent No. 18 Kuldeep Singh have been received back with report that Nek Singh has expired on 30.9.2017, whereas respondent No. 18 Kuldeep Singh had expired on 7.2.2016, which indicates that both of them had expired during pendency of first appeal before learned District Judge (1), Kangra at Dharamshala. 4. Appellant/plaintiff has preferred two applications CMP (M) Nos. 54 and 55 of 2020 for substitution of aforesaid deceased respondents through their respective legal heirs after setting aside the abatement, if any, on the ground that factum of death of these respondents was not in the knowledge of appellant/plaintiff and appellant/plaintiff has gained knowledge about their death only when notices issued to them in present appeal were received back with such report. 5. Relevant provision, dealing with substitution/deletion of deceased defendant or exemption to the plaintiff from necessity of substituting legal representatives of any deceased defendant, is Order 22 Rule 4 C.P.C. which reads as under:- "4. Procedure in case of death of one of several defendants or of sole defendant.-(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (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. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where- (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit had, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (35 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved." 6. Order 22 Rule 4(1) C.P.C. provides that legal representatives of deceased defendant shall be made party on an application made in that behalf and thereafter Court shall proceed with the suit. Rule 4(4) provides that Court may exempt the plaintiff from necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing and judgment may, in such case, be pronounced against defendant, notwithstanding the death of such defendant which indicates that such exemption is to be granted by the Court before pronouncement of judgment. There is another provision under Rule 4(5), which provides filing of an application for substitution of legal representatives of defendant after expiry of limitation period, but with an application under Section 5 of Indian Limitation Act, on the ground that plaintiff had, by reasons of ignorance of death of defendant, sufficient cause for not making the application for substitution within the period specified and in such eventuality Court shall consider the application under the aforesaid Section 5 having due regard to the fact of such ignorance, if proved. 7. Learned counsel for the appellant in view of pronouncement of the Supreme Court in Gurnam Singh (Dead) through Legal Representatives and others v. Gurbachan Kaur (Dead) by Legal Representatives, reported in : (2017) 13 SCC 414 : ( AIR 2017 SC 2419 ) and judgments of learned Single Judges of this High Court in case titled as Sher Singh and others v. Raghu Ram and others, 1981 SLC 25; Ram Rakha and others v. Brahma Nand and others : 1994 (Supp) SLC 29; Jagdish v. Ram Karan and others 2002(1) Current Law Journal (HP) 232, referred in Dewana and another v. Gian Chand Malhotra and others, : Latest HLJ 2011 (HP) 1420 and also judgments in Jaswant Singh v. State of Himachal Pradesh and others, : 2015 (2) Shim LC 674; Jagan Nath and others v. Ishwari Devi, : 1988 (2) Shim LC 273; Karam Chand and others v. Bakshi Ram and others,: 2002 (1) Shim LC 9; Gurnam Singh (dead) by legal representatives and others v. Gurbachan Kaur (dead) : (2017) 13 SCC 414 : ( AIR 2017 SC 2419 ), referred in Tara Wati and others v. Suman and others, : Latest HLJ 2018(HP) 1046, has prayed for remanding the case to the first appellate Court, enabling the appellant to avail appropriate remedy before the said Court available to him under law. 8. Learned counsel for the contesting respondents has objected for remanding the case to the first appellate Court by submitting that technicalities of procedure should not be allowed to defeat the purpose, i.e. justice to the parties, and issue of abatement, partial or as a whole, of the appeal, grant of exemption and substitution of legal representatives of deceased respondent can be considered in present appeal also so as to avoid further unnecessary delay in deciding the lis between the parties. 9. 9. It is well settled that a decree in favour of or against a dead person is nullity. For non substitution of legal representatives of deceased defendant, out of several defendants, may cause abatement of appeal against the deceased defendant or as a whole, depending upon the effect of non substitution of legal representatives of deceased defendant on the relief claimed. Appellant/plaintiff has set up a case of ignorance of death of defendants. 10. In view of judgments relied upon by the appellant, referred supra, an application for setting aside abatement and substitution of legal representatives of deceased defendants should have been made and dealt with by the Court in which abatement occurred as abatement is automatic irrespective of passing of or not passing of such order by the Court and question whether suit to abate in toto or in part, has also to be decided by the same Court where during pendency of the appeal one of parties had expired before hearing the arguments and where he was a necessary party to the lis and his legal representatives have not been brought on record, and issues as to whether there was sufficient cause for setting aside the abatement or whether the legal representatives of deceased are to be brought on record or not in relation to a suit or appeal, at the first instance, are also to be decided by the Court, in which the suit or appeal was pending at the time of death of party and the abatement took place. 11. There is another aspect related to the issue involved herein. Order 41 Rule 14 CPC provides that Appellate Court shall cause publication and service of notice upon respondents) to appear and answer the issue raised in the appeal. Rule 14(3) provides that notice, to be served upon respondent(s), shall be accompanied by copy of memorandum of appeal. 11. There is another aspect related to the issue involved herein. Order 41 Rule 14 CPC provides that Appellate Court shall cause publication and service of notice upon respondents) to appear and answer the issue raised in the appeal. Rule 14(3) provides that notice, to be served upon respondent(s), shall be accompanied by copy of memorandum of appeal. There is addition to sub rule (3) by way of an amendment applicable to Delhi, Himachal Pradesh and Punjab, Haryana and Chandigarh High Courts, which reads as under:- "Delhi, Himachal Pradesh and Punjab, Haryana and Chandigarh.-(i) Add the following as sub-rule (3): "(3) it shall be in the discretion of the appellate court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the court whose decree is complained of, or at any proceedings subsequent to the decree of that court, or on the legal representatives of any such respondent: Provided that- (a) that court may require notice of the appeal to be published in any newspaper or in such other manner as it may direct: (b) no such order shall preclude any such respondent or legal representative from appearing to contest the appeal." 12. The aforesaid amendment provides that Appellate Court may dispense with service of notice on any respondent who did not appear either at the hearing in the Court whose decree is complained or any proceedings subsequent to decree of that Court, or on legal representatives of any such respondent. Therefore, service of respondent, who after service, does not appear in the trial Court and is proceeded ex parte and thereafter also does not appear before the first Appellate Court and is proceeded ex parte, can be dispensed with by the appellate Court i.e. High Court in Regular Second Appeal and in such eventuality there would be no need for substitution of such respondent through his legal representatives as the aforesaid provision also provides that service of legal representatives of any such respondent may also be dispensed with and in such eventuality there would be no question of setting aside the impugned judgment on the ground that respondent who was proceeded ex parte before the Courts below has expired during pendency of matter in the courts below. In such circumstances, appeal can be heard and decided by the Appellate Court on merits after dispensing with service of such respondent. In present case respondent No. 18 Kuldeep Singh was proceeded ex parte in the trial Court as well as in first Appellate Court, therefore, he did not contest the matter in either Courts and as such his service or, service upon his legal representatives may be dispensed with in present appeal. However, another deceased respondent No. 7 Nek Singh, though was proceeded ex parte in the first Appellate Court, but was duly represented by an Advocate in the trial Court. Therefore, even if service upon respondent No. 18 or his legal representatives is dispensed with, then also issue with respect to deceased respondent No. 7 Nek Singh would be governed by the case law referred hereinabove. Thus this aspect is kept open to be discussed and decided in an appropriate case, and present case is disposed of in the light of its peculiar facts and circumstances. 13. In view of exposition of law in judgments referred supra, there is no alternative, but to set aside the judgment and decree passed by the first Appellate Court, i.e. Additional District Judge-1, Kangra at Dharamshala in Civil Appeal No. 86-1/XIII/2013, dated 23.2.2019, titled as Jaishi Ram v. Manohar Lal and others and remit the case to the said Court for adjudication of the aforesaid issue. 14. Consequently, the judgment and decree passed by the Appellate Court is quashed and set aside and case is remanded to first Appellate Court with direction to allow the appellant to take consequential steps on the death of respondent No. 7 Nek Singh and respondent No. 18 Kuldeep Singh and thereafter to decide the question of substitution of their legal representatives, if any, and question of exemption to the plaintiff from necessity of substituting the legal representatives of deceased defendants, and also question of abatement, if any, as the case may be on the basis of steps so taken by the appellant. Needless to say that first Appellate Court shall consider and decide all the pleas and counter pleas of the parties after affording the parties due opportunity of being heard. 15. Needless to say that first Appellate Court shall consider and decide all the pleas and counter pleas of the parties after affording the parties due opportunity of being heard. 15. The contesting parties are directed to ensure their appearance through their legal counsel representing them before learned first Appellate Court on 5 July, 2021 either virtually or physically as possible and permissible in peculiar circumstances on account of pandemic Covid-19. It is made clear that no fresh notice shall be issued to the parties by learned first Appellate Court for ensuring their presence. It shall be personal responsibility of contesting parties to ensure their presence in the first Appellate Court. It is clarified that respondents who have been already proceeded against ex parte before first Appellate Court and also in present Court shall not be necessary to be served afresh. First Appellate Court shall hear the contesting parties and decide the appeal afresh in accordance with law. 16. Consequential steps on account of death of respondents shall be taken by the plaintiff/appellant preferably on the first date of hearing, but not later than two weeks thereafter. Reply thereto, if any also be filed within four weeks, positively and the first appellant shall make an endeavour to decide the application and appeal preferably on or before 30 November, 2021. Appeal stands disposed of in aforesaid terms along with pending applications. Copy of judgment be transmitted to learned first Appellate Court for record/compliance.