Mati Kunwar & Others vs Basant Uraon & Others
2023 Latest Caselaw 1408 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No.243 of 2020
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Mati Kunwar & Others .... .... .... Appellants Versus Basant Uraon & Others .... .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. Arbind Kr. Sinha, Advocate Mr. Anil Kumar, Advocate For the Respondents : Mr. Praveen Akhouri, SC (MINES I)

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Order No.05 Dated- 29/03/2023 Heard the parties.

2. Learned counsel for the appellants submits that the impugned judgment and decree passed in Civil Appeal No.15 of 2015 has been passed in respect of a dead person being the appellant No.2 namely Rajendra Uraon who died on 03.03.2017 though the judgment of Civil Appeal No.15 of 2015 was pronounced on 29.04.2017.

3. Admittedly the impugned judgment and decree has been passed in respect of 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 respect of a dead person, hence, this Court is of the considered view that this Second Appeal is not maintainable having been preferred against the impugned judgment and decree which itself is admittedly 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.2 namely Rajendra Uraon. 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 appellate court to have the decree reopened and to have the legal representatives of the appellant No.2 brought on record in that court.

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

Animesh/                                    (Anil Kumar Choudhary, J.)