Ashok Kumar Sultania & Anr vs Chandra Kant Rathore & Ors
2023 Latest Caselaw 2215 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                S.A. No. 134 of 2019
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Ashok Kumar Sultania & Anr. .... .... .... Appellants Versus Chandra Kant Rathore & Ors. .... .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellant : Mr. Ayush Aditya, Advocate For the Respondent : Mr. J.K. Pasari, Advocate : Mr. D.K. Karmakar, Advocate : Mr. Anurag Kumar, Advocate

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Order No.09 Dated- 21.06.2023 Heard the parties.

Learned counsel for the respondent nos.1 and 2 submits that the respondent nos.1 and 2 have filed a supplementary affidavit dated 27.04.2023 intimating therein that the respondent no.7 namely Gouri Devi has died on 18.10.2018 before filing this second appeal. Hence, this appeal has been filed against a dead person. It is next submitted that the impugned judgment and decree dated 30.01.2019 has also been passed against a dead person being Gouri Devi who was the respondent no.7 of the impugned judgment and decree. It is next submitted that since the impugned judgment and decree is passed against a dead person hence, this second appeal is not maintainable.

It is a settled principle of law that a decree passed in favour of a party who was dead or against the party who was dead 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.

Hence this Court is of the considered view that since the impugned judgment against which this appeal has been preferred is a nullity having been passed against a dead person, this second appeal is not maintainable having been preferred against the judgment which is nullity, hence this second appeal is dismissed being not maintainable.

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. 7. 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 respondents no. 7 brought on record in that court.

In view of disposal of the second appeal, the interlocutory applications, if any, are disposed of being infructuous.

Sonu-Gunjan/- (Anil Kumar Choudhary, J.)