ORDER : 1. By way of present writ petition, the petitioners (legal representatives of the deceased Mahendra Singh) have challenged the order dated 14.09.2023 passed by the learned Board of Revenue, Ajmer (hereinafter referred to as ‘the Board’), whereby the appeal filed by their prepositus Mahendra Singh was rejected. 2. Mr. Sushil Bishnoi, learned counsel for the respondents at the outset raised an objection that Mahendra Singh, who was the sole appellant before the Board had passed away during the pendency of the appeal on 27.08.2020, whereafter, his legal representatives neither informed the Board about his demise nor had they taken up any proceedings for their substitution and thus, the appeal pending before the Board had abated on 26.11.2000 on expiry of 90 days from the death of the appellant of the appeal pending before the Board. 3. Mr. B.S. Sandhu, learned counsel for the petitioners at this juncture submitted that so far as present writ petition is concerned, the same has been filed by the legal representatives of Mahendra Singh and since they were not aware of pending proceedings before the Board, they could not move application for their substitution. It was nevertheless contended that the appeal, which has been decided on 14.09.2023 against Mahendra Singh, who had since passed away, though decided on merit is a nullity and the matter deserves to be remanded back to the Board for deciding the same afresh. 4. Learned counsel for the respondents, however, submitted that if the relief prayed by the petitioners is allowed, then, it will lead to failure of justice, because the legal representative(s) of the litigant would intentionally not move the application for his/her/their substitution and later on, once the order passed by the court concerned is against him/her/them, they will challenge the same on the count of death and pray that the order be set aside. 5. Mr. Bishnoi cited the judgment of Hon’ble the Supreme Court in the case of Amba Bai & Ors. vs. Gopal & Ors., reported in (2001) 5 SCC 570 to buttress his argument that the appeal before the Board had abated and the order passed by the Revenue Appellate Authority on 18.09.2008 has attained finality. He reiterated that the order passed by the Board on 14.09.2023 being a nullity deserves to be ignored and the order passed by the Revenue Appellate Authority is required to be given effect to. 6. He reiterated that the order passed by the Board on 14.09.2023 being a nullity deserves to be ignored and the order passed by the Revenue Appellate Authority is required to be given effect to. 6. Learned counsel for the respondents also relied upon the recent judgment of Hon’ble the Supreme Court in the case of Om Prakash Gupta @ Lalloowa (Now deceased) & Ors. vs. Satish Chandra (Now deceased) : Civil Appeal No. 13407/2024 decided on 11.02.2025 and submitted that the proper course for the petitioners is to move an application for recalling of the order, as has been held by Hon’ble the Supreme Court. 7. He further submitted that on expiry of the limitation period for moving an application for substitution of the appellant, the appeal stood abated and therefore, the impugned order of the Board is a nullity and liable to be ignored and consequently the order of the Revenue Appellate Authority dated 18.09.2008, which was in favour of the present respondents has attained finality. He argued that the petitioners cannot therefore challenge the order of the Board on merit. 8. Distinguishing the above referred judgment rendered in the case of Amba Bai (supra), learned counsel for the petitioners pointed that the proceedings before Hon’ble the Supreme Court arose out of the execution proceedings and no appeal had been preferred against the order of second appellate court, whereas, in the present case the petitioners have preferred the present writ petition under Article 227 of the Constitution of India, being only remedy available, since no further appeal has been provided against the order of the Board. 9. Heard learned counsel for the parties and considered the judgments cited. 10. The facts in the present case are not disputed including the fact that the petitioners being legal representatives have failed to move an application for their substitution in the event of death of their prepositus - Mahendra Singh, who was the appellant before the Board. 11. According to the petitioners, it is only when they received the decision of the Board they learnt about said appeal filed by their father and hence, preferred the present writ petition. Learned counsel submitted that the present petition, which has been filed by the legal representatives of said Mahendra Singh be heard and the order of the Board, which is contrary to law be set aside. 12. Learned counsel submitted that the present petition, which has been filed by the legal representatives of said Mahendra Singh be heard and the order of the Board, which is contrary to law be set aside. 12. True it is, that the petitioners being legal representatives of the deceased Mahendra Singh have preferred the petition challenging the merits of the adjudication made by the Board. But, according to this Court, their challenge to the findings of the Board and Revenue Appellate Authority cannot sustain because consequent to the death of Mahendra Singh, who had passed away on 27.08.2020, the appeal stood abated on 26.11.2020 (after 90 days, as per Article 120 of the Limitation Act, 1901). If the petitioners wanted to step into the shoes of their deceased father, an application ought to have been preferred under Order XXII Rule 3 of Code of Civil Procedure read with section 5 of the Limitation Act and Order XXII Rule 9 of Code of Civil Procedure, but the same was admittedly not done. 13. The position of law that a decree or order passed in favour of or against any dead person is a nullity is a settled position of law. There cannot be an iota of doubt that on 26.11.2020, the appeal had abated. There is some substance in Mr. Bishnoi’s argument that the petitioners should have moved an application for recalling/review of the order under consideration, more particularly when the writ petition is pending for the last 18 months. But the same has not been done. 14. The judgments of Hon’ble the Supreme Court in the case of Om Prakash Gupta @ Lalloowa (supra) and Amba Bai (supra) cited by learned counsel for the respondents though at a first flush gives an impression that Mr. Bishnoi’s contention is correct, however, a careful reading thereof reveals that in the case of Amba Bai (supra), the matter went upto Hon’ble the Supreme Court arising out of the execution proceedings, in which the order impugned was passed by this Court wherein it was held that since during the pendency of second appeal, the appellant had died, the second appeal had abated and such decree had merged in the First Appeal and therefore, the decree could not be executed. Hon’ble the Supreme Court was therefore, pleased to set aside said view of the High Court and permitted the execution to continue. 15. Hon’ble the Supreme Court was therefore, pleased to set aside said view of the High Court and permitted the execution to continue. 15. In the case of Om Prakash Gupta @ Lalloowa (supra), the matter arose because the legal heirs of the appellant (Om Prakash Gupta @ Lalloowa) had preferred an application for recalling/restoration of the order before the High Court, which was dismissed. Considering the facts of the case, Hon’ble the Supreme Court allowed the appeal while setting aside the abatement and granting substitution. 16. Simply because, the proceedings before Hon’ble the Supreme Court arose out of the application for recalling/restoration of such order under consideration, in the opinion of this Court, said judgment rendered in the case of Om Prakash Gupta @ Lalloowa (supra) cannot be construed to be holding as a matter of law that in every such case, firstly an application for recalling/restoration has to be filed. 17. Per contra, this Court finds that the judgment rendered by this Court in the case of Udai Ram vs. Dharam Chand , reported in MANU/RH/0039/1994 deals with almost similar fact situation. The relevant part of the judgment is being reproduced hereinfra:- “The consensus of legal opinion in such circumstances appears to be that where in an appeal a decree is passed in ignorance of death of one of the defendants respondents during the pendency of that appeal, the appeal abates against the dead person. The High Court in appeal against such a decree cannot itself set aside the abatement nor can it affirm the decree passed by the lower appellate Court. The proper course in such a case is to set aside the ineffective decree passed by the lower appellate Court and, remand the case to the Court where abatement has taken place leaving the parties to take necessary steps to have the effect of abatement set aside if they so desire and if they can satisfy the Court that parties are entitled to get the abatement set aside under law.” 18. Mr. Bishnoi’s contention that if the order passed by the Board is set aside and the matter is remanded back to the Board for consideration of application for substitution (if filed by the petitioners), then, every litigant would adopt the same strategy. And whenever the matter on merit is against them, they would challenge the same on technical grounds, cannot be accepted. And whenever the matter on merit is against them, they would challenge the same on technical grounds, cannot be accepted. It has another aspect as well. Had the petitioners not sought their substitution intentionally and in the event the Board had decided the matter in their favour by accepting the appeal, the order which they got on merit would still be a nullity and the opposite party would always have the advantage of taking this plea that such order, which has been passed qua a dead person is a nullity. 19. This Court is, therefore, of the view that the law should take its own course and if the order passed against a dead person is a nullity, it has to be given its legal effect. But, declaring an order to be a nullity cannot in any manner take away legal representatives’rights of undertaking further remedies. 20. This Court has its own doubt about the maintainability of review or recalling application. Once the order has travelled upto this Court under Article 226 of the Constitution of India, the proper course in such a situation is to move an application for setting aside the abatement in accordance with law. However, since the Board has passed the order on merit, the Board may or may not pass appropriate order pursuant to application filed by the petitioners for setting aside the abatement, as the matter has travelled upto this Court. It would, therefore, be necessary for this Court to set aside the order or adjudication made on merit while also holding that the same was a nullity. 21. For the sake of argument, even if Mr. Bishnoi’s argument is accepted, then, asking the petitioners to move an application for recalling/restoration before the Board would be a futile exercise, more particularly when parties had been litigating before this Court for the last 18 months. 22. Following the above observation in the case of Udai Ram (supra), this Court deems it appropriate, expedient so also in the interest of justice to set aside the order dated 14.09.2023 passed by the Board, which is otherwise a nullity. 23. The writ petition is, therefore, allowed. 24. The order dated 14.09.2023 passed by the Board in Appeal No.10192/2008 is, hereby, quashed and set aside. 25. Nevertheless, the petitioners have to move appropriate application(s) for their substitution before the Board. 26. 23. The writ petition is, therefore, allowed. 24. The order dated 14.09.2023 passed by the Board in Appeal No.10192/2008 is, hereby, quashed and set aside. 25. Nevertheless, the petitioners have to move appropriate application(s) for their substitution before the Board. 26. In case, any such application is preferred, the Board shall consider the same in accordance with law, aptly considering the period from 22.11.2023 (date of filing the writ petition) to the date of the order instant, to be a period during which the petitioners were bona-fidely pursuing their remedy before this Court. 27. Needless to observe that the respondents shall be free to contest any such application for substitution, if filed on all available grounds. 28. Stay application also stands disposed of, accordingly.