The State Of Jharkhand Through The ... vs Wakil Rout & Ors
2023 Latest Caselaw 1767 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No. 58 of 2021
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The State of Jharkhand through the Collector, Deoghar & Ors.

.... .... .... Appellants Versus Wakil Rout & Ors. .... .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. D.K. Roy, A.C. to S.C. Mines-I For the Respondents : Mr. K.K. Ambastha, Advocate : Mr. Sudhansu Kr. Deo, Advocate

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Order No.07 Dated- 26.04.2023 I.A. No. 3804 of 2023 It is submitted by the learned counsel for the appellant that the respondent no.2 of this appeal who was the respondent no.4 of the decree under appeal in Title Appeal No. 38 of 2009 died on 29.11.2009 during the pendency of the said appeal but the impugned judgment and decree in the said Title Appeal No. 38 of 2009 was passed on 30.04.2014 without noticing that the respondent no.4 -Lakhi Rout of that appeal died long before the pronouncement of the judgment. Thus the decree under appeal in Title Appeal No. 38 of 2009 of the Court of District Judge-I, Deoghar has been passed in respect of a dead person being the respondent no.4 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 a dead person being the respondent no.4 -Lakhi Rout of Title Appeal No. 38 of 2009 itself are admittedly a nullity, as submitted by the learned counsel for the appellant, 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 first appellate court for impleading the legal representatives of the deceased respondent no.4 -Lakhi Rout of Title Appeal No. 38 of 2009. 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 respondent no.4 -Lakhi Rout of Title Appeal No. 38 of 2009 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.)