Jharkhand High Court
Deo Narayan Mahto & Others vs Harsh Bardhan Mahto & Others on 9 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.47 of 2021
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Deo Narayan Mahto & Others .... .... .... Appellants
Versus
Harsh Bardhan Mahto & 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. Arvind Kr. Choudhary, Advocate
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Order No.06 Dated- 09/05/2023
Heard the parties.
2. Learned counsel for the appellants submits that the appellant No.8
namely Munilal Yadav of this appeal who was the appellant No.5 (a) in
Civil Appeal No.06 of 2018 dated 25.02.2021- the judgment and decree of
which is impugned in this Second Appeal, has died on 29.10.2019 during
the pendency of Civil Appeal No.06 of 2018 but without noticing the
death of the said appellant No.8 namely Munilal Yadav during the
pendency of Civil Appeal No.06 of 2018, the impugned judgment and
decree which was passed in respect of a dead person.
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. (Emphasis supplied)
4. 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 view that this Second Appeal is not maintainable
having been preferred against the impugned judgment which is itself
admittedly a nullity.
5. 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.8 namely Munilal Yadav. 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.8 namely Munilal Yadav brought on record in that court.
7. Accordingly, this Second Appeal is dismissed, being not
maintainable.
8. In view of disposal of this Second Appeal, interlocutory application,
if any, stands disposed of being infructuous.
Animesh/ (Anil Kumar Choudhary, J.)
