Chellaram Jethanand Madhrani And ... vs Maruti Raghunath Kadam And State ...
2004 Latest Caselaw 1229 Bom

ORDER

R.M.S. Khandeparkar, J.

1. None present for the petitioners. Perused the records.

2. Two points arise for consideration in the matter. They are :-

(i) When the petition is filed against a dead person, whether the legal representatives of the deceased respondent can be allowed to be brought on record ?

(ii) If the answer to the above question is in the affirmative, then whose obligation it is to move for such an order, and if the answer is in the negative, then what are the consequences ?

3. This is a petition which has been filed admittedly against a dead person. When the matter was heard on the last date of hearing, it was sought to be argued by the learned advocate for the petitioners that the decree having been passed against the dead person, the same is nullity, and therefore, the petitioners are entitled to challenge the same in the present petition and in case the legal heirs of the deceased respondent have any grievance in the matter, they should themselves approach this Court with request to bring them on record in place of the deceased respondent No.1. The matter was adjourned at the request of the learned advocate for the petitioners in order to enable him to make further submissions, if any, in support of the said contention and that is how the matter was fixed for further hearing today. However, the learned advocate has chosen to remain absent. Evidently, he has no further submission to make in the matter.

4. Undoubtedly, the question of abatement of the suit or appeal would arise only when the suit or the appeal is pending and right to sue or to be sued survives on the date of death of the party. The provisions in that regard are comprised under Order 22 Rules 1 to 4 of the Code of Civil Procedure. However, Rule 6 thereof which is in the form of exception to the said rules provides that :-

"6. No abatement by reason of death after hearing - Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

5. The explicit language of the above quoted rule discloses that if the death occurs between the conclusion of the hearing of the appeal and pronouncement of the judgment, then the proceedings do not abate. In fact, the said rule incorporates an exception to the principles of law that the Court cannot pass a decree against a dead person. The logical conclusion which follows from the said rule is that any decree passed in appeal against a dead person, if the death has occurred between the conclusion of the hearing of the appeal and pronouncement of the judgment, would be lawful decree and would be executable one. The death of a party, occurring after the conclusion of the hearing of the appeal, would not affect the decree in any manner.

6. Undoubtedly, the impugned decree was passed on 12th March, 2004 by the lower appellate court. The appeal was filed by the respondent No.1 herein. The respondent No.1 expired on 2nd March, 2004. The present petition was filed on 29th June, 2004. The contention of the petitioners is that the fact that the appellant-respondent had expired, was not brought to the notice of the lower appellate Court and therefore, the decree passed in favour of the dead person is nullity. Further, placing reliance in the decision of the Apex Court in Amba Bai and Ors. v. Gopal and Ors., , it is sought to be contended that failure on the part of the legal heirs of the deceased respondent, who was appellant in the lower appellate Court, has resulted in abatement of the appeal, and therefore, even the provisions of Order 22 Rule 6 are not attracted in the facts of the case in hand.

7. In Amba Bai's case (supra), during the pendency of the second appeal, the party to the proceedings by name Radhu Lal had expired on 14th December, 1990 and the said fact was not brought to the notice of the Court and the appeal was dismissed on 23rd May, 1991. The legal heirs of the deceased Radhu Lal did not make any efforts to have the judgment in the second appeal set aside. The decree holder Laxmi Lal filed the execution proceedings which were sought to be resisted by the legal representatives of the deceased Radhu Lal contending that the decree under execution was passed by the Court at the time when the appellant had already expired and that the decree being against a dead person, it was a nullity. There was no dispute in the said case that the appeal was dismissed without the knowledge of the Court about the death of the party and the provisions of Order 22 Rule 6 of the Code of Civil Procedure were not attracted in the said case inasmuch as that the disposal of the appeal was not after the conclusion of the hearing of the appeal but the hearing itself had taken place subsequent to the death of the party.

8. In Bai Pani Vankar v. Madhabhai Galabhai Patel, , similar issue had arisen. A suit was filed by one Soma Parma, who was a minor, through his next friend. The suit was dismissed on 23rd December, 1950. By that time Soma had attained majority and he instructed his pleader on 21st January, 1951, to prefer an appeal and he signed a vakalatnama in favour of the pleader on 22nd January, 1951. The pleader preferred the appeal on 29th January, 1951. Prior to that date, Soma died on 23rd January, 1951. On 16th March, 1951, Bai Pani Vankar, who was the heir and legal representative of Soma applied to the District Court to substitute her name in place of Soma. That application was dismissed by the learned District Judge, and it was from that order that the revision application was preferred before this Court. While dismissing the said revision application, it was held that "the appeal that was preferred on 29-1-1951, was clearly a nullity. The appellant being dead, the pleader who preferred the appeal had no authority to prefer any appeal and the vakalatnama signed in his favour had come to an end. If the appeal was a nullity, no order could be made in that appeal which would be an effective order, and therefore the learned District Judge was right in refusing to direct that the petitioner should be substituted in place of the deceased appellant. An effective order under O.1, R.10, can only be made provided there is a suit or an appeal before the Court, but if the suit or the appeal is a nullity, then any order made in that suit or appeal is equally a nullity...."

9. While arriving at the above quoted decision of the Court, reliance was placed in the decision delivered by Justice Mulla in Rampratab v. Gourishankar', AIR 1924 Bom. 109, wherein a suit was filed by the plaintiff against the firm of the defendant's father, who was the sole owner of the said firm and he had expired even before the institution of the suit. In those facts, it was held that the suit instituted was not merely against a wrong person but against no person at all and any order made in the suit allowing amendment of the plaint by substituting the legal representatives of the deceased as the defendant and allowing the suit to proceed against him was also a nullity.

10. In Amar Kaur W/o. Ram Lal and Ors. v. Sadhu Singh and Ors., , it was held that an appeal filed in the name of a person, who was dead on the date of the institution, by a counsel purporting to act on the strength of the power of attorney given to him by the appellant's wife, could not be continued by permitting his legal representatives to be substituted in his place as the appellants, and such an appeal filed in the name of a dead person being a nullity cannot be resuscitated either under Order 1, Rule 10, or Sections 151 and 153 of the Code of Civil Procedure. It was further held that "the powers under O.1 R.10 cannot be exercised to substitute a different person for a dead plaintiff or appellant. The "person" referred to in the said rule means a person in existence who may, of course, be either a human being or a legal person capable of suing or being sued, but it does not include a fictitious person or a person who having died is no longer in existence on the date of the institution of the suit or appeal. A person who is dead has no existence, either in fact or in law, and he is incapable of instituting a suit or an appeal or performing any act. For the same reason no attorney or counsel of his would be competent to file an appeal or institute a suit, as no one can act for, or on behalf of, a person who is dead and has lost his existence."

11. In Abdul Azeez Sahib v. Dhanabagiammal & Ors., , it was held that as the decree passed in ignorance of the death of the plaintiff is an irregularity and cannot have the effect of making the decree without jurisdiction, and as the defendants had not chosen to challenge the decree either by way of appeal or otherwise or to have the decree set aside in the suit itself by appropriate proceedings, it is not open to the executing Court to refuse execution of the decree on the ground that the decree has been passed in favour of a dead person.

12. In the case in hand, it is not in dispute that the appeal was heard much prior to 2nd March, 2004. The death of the respondent having occurred subsequent to the conclusion of the hearing of the appeal and before pronouncement of the judgment, the provisions of Order 22 Rule 6 of the Code of Civil Procedure were squarely attracted and consequently it cannot be said that the decree was passed against the dead person.

13. In any case, even assuming that the decree was passed against the dead person, it cannot be to the benefit of the petitioners to contend that they can challenge the impugned decree against the dead person, without joining the legal representatives of the dead person as the party to the petition. No petition can lie against the dead person. It was necessary for the petitioners themselves to join legal heirs of the deceased respondent as the party respondents in the petition.

14. It was then sought to be contended that the petitioners want to move an application for bringing the legal heirs of the deceased respondent on record. The question of entertaining any such application would arise only in case where the party to the proceedings expires after lodging of the petition in the registry of the Court and not before the lodging of the petition. In case the party expires before lodging of the petition, there cannot be any question of bringing the legal representatives of the deceased respondent on record. The question of bringing on record the legal representatives of the deceased respondent can arise only when the petition is pending against the living person and such party expires during the pendency of the petition. The pendency of the petition in the Court would commence from the time of lodging of such petition in the registry of the Court.

15. Inspite of the fact that the provisions of law having been brought to the notice by the learned advocate for the petitioners, no steps having been taken by the petitioners to join the legal representatives of the deceased respondent - Maruti Raghunath Kadam, who was the appellant in the lower appellate Court, and had expired after the conclusion of hearing of the appeal before the lower appellate Court, the petition is liable to be rejected as not maintainable against the dead person.

16. Accordingly, the petition is rejected as not maintainable, in the facts and circumstances of the case disclosed hereinabove, with no order as to costs.