Santosh Kumar Mandal & Ors vs Rohit Mandal & Ors
2023 Latest Caselaw 1709 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 S.A. No. 315 of 2019
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Santosh Kumar Mandal & Ors. .... .... .... Appellants Versus Rohit Mandal & Ors. .... .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. K.K. Ambastha, Advocate

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Order No.06 Dated- 24.04.2023 I.A. No.5908 of 2022 Learned counsel for the appellants submits that this interlocutory application has been filed with a prayer to grant leave to pursue the appeal against appellant nos. 1 to 8 and ignoring the defects as pointed out by the stamp reporter.

It is submitted by the learned counsel for the appellants that Beni Mandal, Dhaneshwar Manda and Most. Janki Devi who are respectively the appellant nos. 1, 2 and 4 in the learned first appellate court in Civil Appeal No. 35 of 2017 died during the pendency of the said Civil Appeal No. 35 of 2017 but the heirs and legal representatives could not be substituted before the learned lower appellate court. Hence, the judgment and decree passed in Civil Appeal No. 35 of 2017 has been passed in respect of three dead persons namely Beni Mandal, Dhaneshwar Manda and Most. Janki Devi. So the impugned judgment and decree is a nullity.

It is a settled principle of law that a decree passed in favour of a party who was dead or against the party who was dead 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.

Hence this Court is of the considered view that since the impugned judgment against which this appeal has been preferred is a nullity having been passed against dead persons, this second appeal is not maintainable having been preferred against the judgment which is nullity, hence this second appeal is dismissed being not maintainable.

The learned counsel for the appellants submits that the appellants will approach the first appellate court for impleading the legal representatives of the deceased appellant nos. 1, 2 and 4 of the learned first appellate court. The learned counsel for the appellants 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).

It is made clear that this order will not stand in the way of the appellants taking such steps as are permissible in law in the lower court to have the decree reopened and to have the legal representatives of the appellant nos. 1, 2 and 4 of the learned first appellate court brought on record in that court.

In view of disposal of the second appeal, all the interlocutory applications are disposed of being infructuous.

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