Andhra Pradesh High Court - Amravati
Kolukula Bhanu Kumari vs Arepu Srinivasa Rao on 14 December, 2023
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.335 of 2023
JUDGMENT:
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. 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) Thr. Lrs. & Ors. Versus
Gurbachan Kaur (D) by Lrs. & Ors.1, 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
(2017) 4 Supreme 549
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 and 10
others2, 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 v. Gurbachan Kaur (Dead) by
Legal Representatives reported in (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 case [Kiran Singh v. 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. 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 v. LAO [N. Jayaram Reddy v. LAO, (1979) 3
SCC 578] , Ashok 8 SA No.1171/14 Transport Agency v.
Awadhesh Kumar [Ashok Transport Agency v. Awadhesh Kumar,
Second Appeal No.1171 of 2014, dt. 17.04.2023
(1998) 5 SCC 567] and Amba Bai v. Gopal [Amba Bai v. Gopal,
(2001) 5 SCC 570] )
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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".
14. In view of the foregoing discussion, this Court
deems fit to allow the present civil miscellaneous appeal by
setting aside the impugned order.
15. 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.
16. As a sequel, all the pending miscellaneous
applications shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 14 -12-2023
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HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.335 of 2023
Date : 14 .12.2023
Gvl
