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2023 DIGILAW 1576 (AP)

Kolukula Bhanu Kumari W/o Hanumanth Rao v. Arepu Srinivasa Rao (Died)

2023-12-14

K.MANMADHA RAO

body2023
JUDGMENT : K. MANMADHA RAO, J. 1. The present Civil Miscellaneous Appeal is filed by the appellant aggrieved by the order dated 26.07.2023 passed in E.P.No. 23 of 2019 in O.S No. 34 of 2014 on the file of the VI Additional District Judge, Krishna at Machilipatnam (for short “the Court below”). 2. The appellant herein is the defendant/J.Dr and the respondents herein are the plaintiffs/D.Hrs. 3. Originally the suit in O.S No. 34 of 2014 was filed on the file of the District Judge, Krishna at Machilipatnam (for short “the trial Court”), for grant of specific performance of agreement of sale executed by the defendant/J.Dr in favour of the plaintiffs/D.Hrs. The same was decreed with cots by the trial Court vide decree and judgment dated 30.04.2019 and the defendant was directed to execute a registered sale deed in respect of suit property by receiving the balance of sale consideration amount of Rs.7,71,095/- within a period of two months from the date of judgment and handover the vacant possession of the suit property to the plaintiffs, failing which the plaintiffs are entitled to obtain the registered sale deed and vacant possession of the suit property through process of the Court. Though the defendant has not complied with the order of the trial Court, the plaintiffs/D.Hrs filed the impugned E.P.No. 23 of 2019 in O.S No. 34 of 2014 on the file of VI Additional District Judge, Krishna at Machilipatnam (for short “the Court below”) under Order 21 Rule 34 of CPC seeking for a direction to the defendant/ J.Dr for execution of the registered sale deed in favour of the D.Hrs. The same was allowed by the Court below vide order dated 26.07.2023. Aggrieved by the same, the present civil miscellaneous appeal came to be filed. 4. Heard Sri P. Durga Prasad, learned counsel appearing for the appellant. Despite service of notice, none appeared on behalf of the respondents. 5. On hearing, learned counsel for the appellant submits that the order of the Court below is erroneous, contrary to law, weight of evidence and probabilities of the case. He further submits that the impugned order is opposed to the very spirit and object of the provisions of the Code of Civil Procedure 1908. 5. On hearing, learned counsel for the appellant submits that the order of the Court below is erroneous, contrary to law, weight of evidence and probabilities of the case. He further submits that the impugned order is opposed to the very spirit and object of the provisions of the Code of Civil Procedure 1908. He submits that the Court below ought to have seen that the 1st respondent died on 1.11.2022 and passing of order in E.P No. 23 of 2019 on 26.7.2023 in favour of dead person will not hold good in absence of getting his L.Rs on record. He further submits that the Court below grossly erred in appreciating the contents of the counter that AS No. 653 of 2019 is pending before this Hon’ble Court and the Court below ought to have seen that the Court cannot execute sale deed in furtherance of suit agreement of sale in favour of dead person. He mainly submits that the reasons assigned by the Court below in the impugned are neither sustainable nor tenable in the eye of law and liable to be set aside. 6. To support his contentions, learned counsel for the appellant has relied upon a decision of Hon’ble Supreme Court reported in Gurnam Singh (D) through LRs. and Others vs. Gurbachan Kaur (D) by LRs. and Others, (2017) 4 Supreme 549 wherein it was held that: During pendency of the second appeal, Gurbachan Kaur-appellant (plaintiff) died on 10.05.1994. Likewise, Joginder Singh (respondent-defendant No. 2) died on 06.12.2000 and lastly Gurnam Singh (respondent-defendant No. 4) also died on 19.04.2002. Despite bringing to the notice of the High Court about the death of the appellant and the two respondents, no steps were taken by anyone to bring their legal representatives on record to enable them to prosecute the lis involved in the appeal. 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. 7. 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. 7. In another decision of High Court of Madhya Pradesh at Jabalpur in a case of Raniya Bai W/o Madhav Rathore vs. Tekmani Rthore S/o Dasru Rathore, Second Appeal No.1171 of 2014, dated 17.04.2023 wherein the Madhya Pradesh Court held that: “…..the appeal is admitted on the following substantial questions of law: “Whether the judgment and decree dated 14.10.2014 passed by Appellate Court is a nullity as respondent no. 2 Bhudha had already expired and his legal representatives were not brought on record.” Under these circumstances, it is clear that the decree was passed by the Appellate Court in favour of a dead person. 8. The Supreme Court in the case of Gurnam Singh (Dead) through Legal Representatives and Others vs. Gurbachan Kaur (Dead) by Legal Representatives, (2017) 13 SCC 414 has held as under: 13. The short question which arises for consideration in this appeal is whether the impugned order allowing the plaintiff's second appeal is legally sustainable in law? In other words, the question is whether the High Court had the jurisdiction to decide the second appeal when the appellant and the 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record? It is a fundamental principle of law laid down by this Court in Kiran Singh vs. Chaman Paswan, AIR 1954 SC 340 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 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. This principle, in our considered opinion, squarely applies 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” [See N. Jayaram Reddy vs. LAO, (1979) 3 SCC 578, Ashok Transport Agency vs. Awadhesh Kumar, (1998) 5 SCC 567 and Amba Bai vs. Gopal, (2001) 5 SCC 570 ] 9. While relying upon the above decision, the learned counsel for the petitioner submits that any decree passed in favour of or against a dead person is a nullity. Therefore, prayed to allow the present appeal by setting aside the impugned order. 10. On perusing the material available on record, admittedly the respondents/D.Hrs filed the impugned E.P basing on the decree passed by the Court below. The suit was filed by them for specific performance of contract on the basis of Ex.A1 un-registered sale agreement and for alternative relief of refund of the earnest money of Rs.3,05,000/- with interest at 12% per annum. However, the Court below did not consider the alternative relief of Earnest money. It is further observed that the Ex.A1 which is non possessory agreement of sale which is void under Section 17(1)(g) of A.P. Amendment Act 4 of 1999 (TP Act). As per the amendment all agreements of sale of immovable property worth more than Rs.100/- compulsorily be registered. As the immovable property\ involved in the un-registered sale agreement dated 10.05.2014 is worth more than Rs.100/- the said agreement of sale is invalid for want of registration. Moreover the said un-registered agreement of sale will not affect transfer of the 1103 square yards of vacant site in R.S No. 673 situated in Pedana on that ground the plaint is liable to be rejected. 11. A combined reading of Section 17 or Section 49 of Registration shows that an un-registered sale agreement cannot affect any property comprised therein, it is not a question of admissibility of a document the non-Registration invalidity the transaction altogether when an invalid document was admitted cannot by any process of reasoning validating the invalid document. 12. 11. A combined reading of Section 17 or Section 49 of Registration shows that an un-registered sale agreement cannot affect any property comprised therein, it is not a question of admissibility of a document the non-Registration invalidity the transaction altogether when an invalid document was admitted cannot by any process of reasoning validating the invalid document. 12. Section 17 1(A) of the Registration Act, 1908 which deals with registerable documents according to that section clearly mentions that the documents which registration is compulsorily an agreement of any immovable property for the purpose of transfer with consideration according to Section 53-A of the Transfer of Property Act 1882 should be registered. 13. This Court further observed from the material that, the respondents/D.Hrs have not followed procedure prescribed under Order 21 Rule 34(2) CPC. Therefore, absolutely there are no grounds to execute the sale Deed on behalf of the appellant/J.Dr under Order 21 Rule 34 CPC because the respondents/D.Hrs have suppressed the material facts and filed the impugned E.P. 14. It is a fundamental principle of law 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. This principle is squarely applies 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”. 15. In view of the foregoing discussion, this Court deems fit to allow the present civil miscellaneous appeal by setting aside the impugned order. 16. Accordingly, the Civil Miscellaneous Appeal is allowed. The impugned order dated 26.07.2023 passed in E.P.No. 23 of 2019 in O.S No. 34 of 2014 on the file of the VI Additional District Judge, Krishna at Machilipatnam, is hereby set aside. There shall be no order as to costs. 17. As a sequel, all the pending miscellaneous applications shall stand closed.