Arvind Kumar Bhakta vs Asgar Ali & Others
2023 Latest Caselaw 2476 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    S.A. No.435 of 2016
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Arvind Kumar Bhakta .... .... .... Appellant Versus Asgar Ali & Others .... .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellant : Mr. Praveen Kr. Varma, Advocate

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Order No.04 Dated- 31/07/2023 Heard the learned counsel for the appellant. Learned counsel for the appellant submits that the respondent No.4 namely Masud Parwej of this appeal died on 08.08.2014 during the pendency of Title Appeal No.48 of 2006 of the court of District Judge-IV, Giridih, the judgment and decree of which was passed on 24.06.2016. Hence, the impugned judgment i.e. Title Appeal No.48 of 2006 has been passed against the dead person.

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 appellant submits that the appellant will approach the learned First Appellate Court for incorporating the legal representatives of the respondent No.4 namely Masud Parwej of this appeal. Learned counsel for the appellant 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 appellant 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 namely Masud Parwej of this appeal brought on record in that court.

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

Animesh/                                    (Anil Kumar Choudhary, J.)