Bombay High Court
Kishor S/O Mangrulal Gupta And ... vs Bhaskar S/O Pandurangji Gade on 2 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 52 of 2011
1. Kishor son of Mangrulal Gupta,
aged about 48 years,
occupation - service,
resident of C/o Gandhibag
Co-op. Bank,
near Chitnavispark Chowk,
Mahal, Nagpur.
2. Smt. Milan wife of Kishor Gupta,
aged about 42 years,
occupation - Household,
resident of in front of Nikalas
Mandir,
near Itwari High School,
Itwari, Nagpur. ..... Appellants
Defendants
Versus
Bhaskar son of Pandurangji Gade
since dead, through his
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legal heirs :
1. Smt. Ratna wife of Bhaskarrao
Gade,
2. Shri Nandkishor son of Bhaskarrao
Gade,
3. Smt. Rupa Bhaskarrao
Gade,
4. Smt. Jostna Bhaskarrao
Gade,
all residents of House No.541,
Ward No. 116,
near Ayachit Mandir,
Mahal, Nagpur. ..... Respondent
Plaintiff
*****
Mr. S. P. Kshirsagar, Adv., for the appellants.
Mr. A. Pannase, Adv., for legal heirs of respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 02nd August, 2017
ORAL JUDGMENT:
01. Admit. Heard finally with consent of learned counsel for the
parties on the following substantial question of law:-
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"The appellant before the appellate Court - Bhaskar
Gade having expired on 24th December, 2009 and his
legal heirs not being brought on record, whether the
judgment of the first appellate Court deciding the
appeal thereafter on 30th September, 2010 is a nullity?"
02. One Bhaskar Gade had filed suit for declaration that he was
the owner of the suit property and had absolute right to enjoy the
same. A mandatory injunction to direct the defendants to remove the
construction that was touching his house was prayed for. The trial
Court by its judgment dated 30th January, 2003 dismissed the suit.
The original plaintiff filed an appeal. During pendency of the appeal,
said Bhaskar expired on 24th December, 2009. His legal heirs were
not brought on record and on 30th September, 2010, his appeal came
to be allowed. The defendants have, therefore, come up in appeal.
03. Shri S. P. Kshirsagar, learned counsel for the appellants,
submitted that the decree passed in favour of Bhaskar was a nullity as
he had expired prior to passing of said judgment. Relying upon the
judgment of Honourable Supreme Court in Amba Bai & others Vs.
Gopal & others [AIR 2001 SC 2003], it was submitted that the decree
passed by the first appellate Court was a nullity and it was liable to be
set aside.
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04. Shri A. Pannase, learned counsel for the legal heirs of the
original plaintiff, supported the impugned judgment. According to him,
the appellate Court rightly decreed the suit after considering the
evidence on record. Without prejudice, it was submitted that if the
judgment is set aside, liberty should be granted to the legal heirs to
take appropriate steps to have the proceedings revived.
05. Heard respective counsel.
06. It is not in dispute that the original plaintiff - Bhaskar who
was the appellant in Regular Civil Appeal No. 158 of 2003 expired on
24th December, 2009. The judgment of the first appellate Court is
dated 30th September, 2010 and in accordance with the law laid down
in Amba Bai & others [supra], said judgment having been passed in
favour of a dead person was a nullity.
07. In view of the aforesaid settled position, the substantial
question of law is answered by holding that judgment of the first
appellate Court decided in favour of a dead person was a nullity.
08. Accordingly, judgment in Regular Civil Appeal No. 158 of
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2003 dated 30th September, 2010 is quashed and set aside. It is
clarified that it is open for the legal heirs of the original plaintiff to take
such steps as are permissible in law to prosecute the proceedings.
09. The Appeal is allowed in aforesaid terms.
Judge
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