Jharkhand High Court
Anand Kumar Pandey & Others vs Sidhi Nath Pandey & Others on 27 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.157 of 2020
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Anand Kumar Pandey & Others .... .... .... Appellants
Versus
Sidhi Nath Pandey & Others .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellants : Mr. Sudhir Kr. Sharma, Advocate
For the Respondents : Mr. Anand Kr. Pandey, Advocate
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Order No.05 Dated- 27/02/2023
I.A. No.12079 of 2022
Heard the parties.
2. Learned counsel for the appellants submits that this interlocutory
application has been filed with a prayer to send the decree under appeal
to the learned First Appellate Court for making corrections or may ignore
the defect pointed out by the stamp reporter at Serial No.4. It is next
submitted by the learned counsel for the appellants that the defect pointed
out at Serial No.4 is that the date of judgment and decree signing date of
the trial court may be verified at page No.3 of the appellate court, hence,
the same may be sent to court below for necessary correction. It is next
submitted that it being a settled principle of law that the date of decree is
the same as the date of judgment irrespective of the date of decree is
signed, hence the defect pointed out by the Stamp Reporter be ignored.
3. Considering the fact that the defect pointed out at Serial No.4 is
minor in nature; the same is ignored.
4. This interlocutory application stands disposed of accordingly.
(Anil Kumar Choudhary, J.)
I.A. No.12078 of 2022
Heard the parties.
2. Learned counsel for the appellants submits that this interlocutory
application has been filed with a prayer to ignore the defect pointed out
by the stamp reporter at Serial Nos.1 & 2. It is next submitted that the
defect pointed out at Serial No.1 is that the appellant No.1 and the
respondent No.4 in the learned First Appellate Court have not been
impleaded as party and the defect No.2 is that the appellant No.8-15 and
respondent No.4-9 of the appeal memo are not party to the decree under
appeal. It is next submitted by the learned counsel for the appellants that
the appellant No.1 in the learned First Appellate Court namely Shyam
Kishore Pandey died during the pendency of Misc. Case No.04 of 2014
and the said Misc. Case No.04 of 2014 was filed for restoration of Misc.
Case No.5/2012 and Misc. Case No.05 of 2012 was filed in terms of
restoration of Civil Appeal No.12 of 2009. It is next submitted that as
mentioned in para-8 of the instant interlocutory application that the
names of legal representatives of the appellant No.1 who was respectively
the appellant No.8-15 and respondent No.4 who are respectively the
respondent No.4-9 of this appeal memo could not be substituted in place
of appellant No.1 and respondent No.4 before the learned First Appellate
Court. Hence, it is submitted that the decree passed in Civil Appeal No.12
of 2009 in favour of and is against two dead persons being the appellant
No.1 namely Shyam Kishore Pandey and respondent No.4 namely Sita
Ram Paul of the Civil Appeal No.12 of 2009 the judgment and decree of
which is impugned in this appeal.
3. Admittedly the impugned judgment and decree has been passed in
favour of or against a dead person and 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.
4. Since the impugned judgment and decree itself is admittedly a
nullity having been passed against/ in favour of dead persons, 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.
5. The learned counsel for the appellants submits that the appellants
will approach the learned First Appellate Court for incorporating the legal
representatives of the appellant No.1 and respondent No.4 in the cause
title of the appeal memo, who were substituted in a revocation case
connected with the title appeal, the judgment and decree of which is
impugned in this second appeal. 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).
6. 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.1 and respondent No.4 brought on record in that court.
7. Accordingly, this Second Appeal is dismissed, being not
maintainable.
Animesh/ (Anil Kumar Choudhary, J.)
