Purendra Sah vs Ramrati Devi & Ors
2023 Latest Caselaw 1764 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 S.A. No. 204 of 2022
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    Purendra Sah                   .... .... .... Appellant
                            Versus
    Ramrati Devi & Ors.            .... .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellant : Mr. Rajesh Kumar, Advocate : Ms. Apurwa Pathak, Advocate

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Order No.04 Dated- 26.04.2023 It is submitted by the learned counsel for the appellant that the appellant no.7 of the decree under appeal has died on 13.03.2017 during the pendency of Title Appeal No. 02 of 2016 but the said fact of death of the appellant no.7 was never brought to the notice of the first appellate court, hence the impugned judgment and decree in Title Appeal No. 02 of 2016 has been passed in respect of a dead person being the appellant no.7 -Shankar Sah. It is next submitted that the respondent no.1 of the decree under appeal being Title Appeal No. 02 of 2016 died on 07.01.2015 during the pendency of Title Suit No. 15 of 2003, the judgment of which was pronounced on 28.11.2015 but nobody could bring to the notice of the trial court that the respondent no.1 who was the defendant no.1 in Title Suit No. 15 of 2003 has died. Consequently, the judgment and decree in Title Suit No. 15 of 2003 has been passed against a dead person being the defendant no.1 and this fact also could not be noticed during the pendency of Title Appeal No. 02 of 2016. Consequently, Title Appeal No. 02 of 2016 has been passed in respect of another dead person being the respondent no.1 -Ganesh Sah, son of Late Baiju @ Baijnath Sah also.

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 has been passed against two dead persons being the appellant no.7 -Shankar Sah and respondent no.1 -Ganesh Sah, son of Late Baiju @ Baijnath Sah of Title Appeal No. 02 of 2016, so the impugned judgment and decree itself are admittedly nullity, therefore, this Court is of the considered view that this Second Appeal is liable to be dismissed being not maintainable having been preferred against the impugned judgment which itself is admittedly nullity.

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

The learned counsel for the appellants submits that the appellants will approach the trial court for impleading the legal representatives of the deceased appellant no.7 -Shankar Sah and respondent no.1 -Ganesh Sah, son of Late Baiju @ Baijnath Sah of Title Appeal No. 02 of 2016. 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 no.7 -Shankar Sah and respondent no.1 -Ganesh Sah, son of Late Baiju @ Baijnath Sah of Title Appeal No. 02 of 2016 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.)