Arun Kumar Bhagat vs Karamdayal Ram Ganjhu & Others
2023 Latest Caselaw 1456 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No.556 of 2017
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Arun Kumar Bhagat .... .... .... Appellant Versus Karamdayal Ram Ganjhu & Others .... .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellant : Mr. Kundan Kr. Ambastha, Advocate

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Order No.06 Dated- 03/04/2023 I.A. No.2075 of 2023 Heard the learned counsel for the appellant. Learned counsel for the appellant submits that he does not press this interlocutory application.

Accordingly, this interlocutory application stands rejected as not pressed.

(Anil Kumar Choudhary, J.) I.A. No.2376 of 2023 Learned counsel for the appellants submits that this interlocutory application has been filed with a prayer to ignore the defect pointed No.2 out by the stamp reporter. It is next submitted by the learned counsel for the appellants that the appellant No.1 before the learned First Appellate Court in Civil Appeal No.138 of 2008 died on 29.05.2010 during the pendency of the said Civil Appeal No.138 of 2010 which was disposed of by the impugned judgment and decree dated 19.08.2017, hence, the impugned judgment and decree passed in Civil Appeal No.138 of 2008 has been passed in respect of a dead person being the appellant No.1 namely Smt. Ramawati Devi.

2. Admittedly the impugned judgment and decree has been passed in respect of a dead person and it is a settled principle of law that the decree passed in favour or against a dead person is a nullity as has been observed by the Hon'ble Supreme Court of India in the case of Kishun alias Ram Kishun (Dead) Through LRS. Vs. Behari (Dead) By LRS., reported in (2005) 6 SCC 300, para-6 of which reads as under:-

"6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned Senior Counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside.

4. Since the impugned judgment and decree itself is admittedly a nullity having been passed in respect of dead person, hence, this Court is of the considered view that this Second Appeal is not maintainable having been preferred against the impugned judgment which is itself admittedly nullity.

5. Learned counsel for the appellant submits that the appellant will approach the learned First Appellate Court for incorporating the legal representatives of the appellant No.1 namely Smt. Ramawati Devi. Learned counsel for the appellant also places before this Court the order passed by a coordinate Bench of this Court in the case of Alimuddin Ansari Vs. Wasia Khatoon, reported in (2004) 4 JCR 700 (Jhr).

6. It is made clear that this order will not stand in the way of the appellant taking such steps as are permissible in law in the lower appellate court to have the decree reopened and to have the legal representatives of the appellant No.1 brought on record in that court.

7. Accordingly, this Second Appeal is dismissed, being not maintainable.

8. In view of disposal of this Second Appeal, interlocutory application, if any, stands disposed of being infructuous.

Animesh/                                         (Anil Kumar Choudhary, J.)