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2025 DIGILAW 228 (HP)

Krishan Kumar (deceased) v. Phuyian (deceased)

2025-02-28

VIVEK SINGH THAKUR

body2025
JUDGMENT : Vivek Singh Thakur, J. This Review Petition has been preferred against the judgment dated 20.6.2017 passed in RSA No. 419 of 2002 by learned Single Judge ofthis High Court, but as the said Bench is not available now, therefore, this matter has been listed before this Court. 2. During pendency of Review Petition, it came in the notice that respondent No. 1(b) Munu Ram who was appellant in RSA No. 419 of 2002 had expired on 14.9.2015, i.e. during pendency of RSA No. 419 of 2002, therefore, an application CMP No. 5680 of 2019 has been preferred by petitioner No. 1(a) who was respondent No. 1(a) in RSA No. 419 of 2002 for determining the question of abatement of RSA No. 419 of 2002. 3. Petitioners have filed CMP(M) No. 233 of 2019 for substitution of respondent No. 1(b) Munu Ram through his legal heirs. 4. It is also matter of record that appeal (RSA) was preferred by Phuyian during her life time in the year 2002 and she died on 6.7.2010 whereafter her legal heirs who were performa respondents in the appeal (RSA) were transposed as appellants No. 1(a) to 1(k), respectively vide order dated 10.6.2013 passed in CMP (M) No. 948 of 2013. Manu Ram was transposed as appellant No. 1(b). 5. Thereafter, Munu Ram expired on 14.9.2015, but he was neither deleted nor substituted through legal heirs. However, appeal (RSA)was allowed on 20.6.2017. 6. It is submitted by learned counsel for the parties that in view of judgment of the Supreme Court in Gurnam Singh (dead) through legal representatives and others Vs. Gurbachan Kaur (dead) by Legal representatives, reported in (2017) 13 SCC 414 , the judgment is nullity because it was passed in favour of a dead person. Following paras of this judgment have been referred by them:- “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 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record? 14. In other words, the question is whether the High Court had the jurisdiction to decide the second appeal when the appellant and 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record? 14. In a leading case of this Court in Kiran Singh & Others vs. Chaman Paswan & Others ( AIR 1954 SC 340 ), the learned Judge Venkatarama Ayyar, J. speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature: (AIR p. 342, para 6) “It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.” 15. 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 nullity. The reasons are not far to seek. ….. ….. …. …. 21. It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) 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, 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 & Anr. Vs. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, Ashok Transport Agency vs. Awadhesh Kumar & Anr., (1998) 5 SCC 567 and Amba Bai & Ors. Vs. Vs. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, Ashok Transport Agency vs. Awadhesh Kumar & Anr., (1998) 5 SCC 567 and Amba Bai & Ors. Vs. Gopal & Ors., (2001) 5 SCC570).” 7. It is also settled that question of abatement is to be decided by the same Court, where party to lis has expired during the pendency of proceeding. Following para of judgment dated 13.7.2022, passed in RSA No. 328 of 2019, titled as Balwant Singh Vs. Ramesh, 2022 SCC Online HP 382, is relevant:- “5. This Court, vide judgment dated 24.05.2021, passed in RSA No.261 of 2019, titled as Jaishi Ram vs. Manohar Lal and others after taking into consideration relevant provisions of law as well as judgments passed by this High Court previously and also pronouncements of the Supreme Court in cases Gurnam Singh (Dead) through Legal Representatives and others vs. Gurbachan Kaur (Dead) by Legal Representatives, reported in (2017) 13 SCC 414 ; Sher Singh and others vs. Raghu Ram and others, 1981 S.L.C. 25; Ram Rakha and others vs. Brahma Nand and others, 1994 (Supp) S.L.C. 29; Jagdish vs. Ram Karan and others, 2002(1) Current Law Journal (H.P.) 232, referred in Dewana and another vs. Gian Chand Malhotra and others, Latest HLJ 2011 (HP) 1420 and also judgments in Jaswant Singh vs. State of Himachal Pradesh and others, 2015(2) Shim.L.C. 674 ; Jagan Nath and others vs. Ishwari Devi, 1988 (2) Shim.L.C. 273 ; Karam Chand and others vs. Bakshi Ram and others, 2002(1) Shim.L.C. 9 ; and Gurnam Singh (dead) by legal representatives and others vs. Gurbachan Kaur (dead), (2017) 13 SCC 414 , referred in Tara Wati and others vs. Suman & others, Latest HLJ 2018 (HP) 1046 , has held as under:- “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. 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 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.” 8. Considering the submissions made by learned counsel for the parties and case law referred supra, judgment dated 20.6.2017 passed in RSA No. 419 of 2002 is set aside and RSA No. 419 of 2002 is restored to its original position for deciding the impact of death of Munu Ram appellant No. 1(b) in appeal (RSA) during pendency of the said appeal including question of abatement, if any, arisen for consideration on that count. After deciding the question of abatement, if need arises, RSA shall be decided afresh on merits. 9. Parties are at liberty to take appropriate steps in RSA well before next date on account of death of Munu Ram appellant No. 1(b) therein and/or any other person expired after filing of RSA, if not already taken, as required and permissible under law. 10. Review petition is disposed of in aforesaid terms but without going into merits of other issues raised in the Review Petition. 10. Review petition is disposed of in aforesaid terms but without going into merits of other issues raised in the Review Petition. Pending applications, if any, also stand disposed of in the aforesaid terms. Copy of this order be placed on main file of RSA No. 419 of 2002.