Asha Mandal & Another vs Ashok Kumar Sharma & Others
2023 Latest Caselaw 2788 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No.79 of 2022
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Asha Mandal & Another .... .... .... Appellants Versus Ashok Kumar Sharma & Others .... .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. Rahul Kr. Gupta, Advocate For the Respondents : Mr. Prabhash Kumar, Advocate Mr. Ganesh Ram, Advocate

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Order No.08 Dated- 10/08/2023 Heard the parties.

Perusal of the record further reveals that the respondent No.11 namely Ashok Kumar Pal has died on 04.12.2019 and the judgment of Civil Appeal No.47 of 2018 was delivered on 23.06.2022, hence, the impugned judgment and decree of Civil Appeal No.47 of 2018 has been passed in respect of a dead person being respondent No.11 namely Ashok Kumar Pal.

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.

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

Learned counsel for the appellants submits that the appellants will approach the learned First Appellate Court for incorporating the legal representatives of the respondent No.11 namely Ashok Kumar Pal. 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.11 namely Ashok Kumar Pal brought on record in that court.

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

In view of the disposal of the instant Second Appeal, pending interlocutory applications, if any, stand disposed of being infructuous.

Animesh/                                       (Anil Kumar Choudhary, J.)