Banshi Sahu (Since Deceased) & Ors vs Shreemati Mulurwa Devi & Ors
2023 Latest Caselaw 1493 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No. 110 of 2022
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Banshi Sahu (since deceased) & Ors.

.... .... .... Appellants Versus Shreemati Mulurwa Devi & Ors. .... .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. A.K. Sahani, Advocate : Mr. Vikesh Kumar, Advocate

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Order No.04 Dated- 05.04.2023 I.A. No.2936 of 2023 It is submitted by the learned counsel for the appellants that in the instant interlocutory application, it has been mentioned that the appellant no.1 -Banshi Sahu of this second appeal who was the appellant no.1 before the first appellate court in Civil Appeal No. 06 of 2007 died on 13.06.2012 and the impugned judgment and decree passed in Civil Appeal No. 06 of 2007 has been passed in respect of the deceased appellant no.1 - Banshi Sahu without taking note of the fact that he was dead by the time the impugned judgment and decree was passed on 31.05.2022. Hence, it is submitted that the impugned judgment and decree having been passed in respect of a dead person, the same is nullity.

It is a settled principle of law that a decree passed in favour of or against a dead person is a nullity as has been held 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. (Emphasis supplied)

Since the impugned judgment and decree passed in Civil Appeal No. 06 of 2007 is itself a nullity, 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 a nullity.

Accordingly, this Second Appeal is dismissed, being not maintainable, having been preferred against the judgment which is a nullity.

In view of the disposal of the instant Second Appeal, this interlocutory applications stand dismissed being infructuous.

Sonu-Gunjan/- (Anil Kumar Choudhary, J.)