Jharkhand High Court
Adit Sahu vs Ravi Ranjan Prasad on 14 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.41 of 2017
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1. Adit Sahu
2. Rajendra Sahu
All sons of Sri Bindeshwar Sahu, resident of Village Sewara,
P.O. Naugarha, P.S. Bishrampur, District Palamau
.... .... .... Appellants
Versus
1. Ravi Ranjan Prasad, son of Sheo Narayan Prasad, resident of
Village Sewara, P.O. Naugarha, P.S. Bishrampur, District Palamau,
represented through his uncle Ramashish Prasad, next friend of Nai
Mohalla, P.O. & P.S. Daltonganj, District Palamau.
2. Santosh Prasad, son of Sri Sheo Narayan Prasad
3. Malti Devi, wife of Sri Sheo Narayan Prasad
4. Sheo Narayan Prasad, son of Late Bhagwat Prasad.
All R/o Village:- Sewara, P.O. Naugarha, P.S. Bishrampur,
District Palamau, at present No.2 is residing at- C/O Sheo Shankar
Prasad Gupta, Kirana Shop, Near M.N. Patel, Mandirof, Village and
P.O.- Nora, District- Surat, Gujrat.
.... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellants : Mr. Kishore Kr. Mishra, Advocate
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Order No:-07 Dated:-14-10-2024
Heard the learned counsel for the appellants.
Learned counsel for the appellants submits that this interlocutory
application has been filed with a prayer to pass appropriate order/direction
to dispose of the instant appeal in terms of the order dated 24.01.2023 and
26.07.2023 which are the orders passed by this Court in Second Appeal
No.112 of 2021 and Second Appeal No.422 of 2019, which appeals have no
connection with this case except the principle of law discussed in those
orders.
Learned counsel for the appellants next submits that the appellant
No.2 namely Isar Sahu of Partition Appeal No.49 of 2005 of the court of
District Judge-VIII, Palamau at Daltonganj has died in July, 2007 though the
judgment and decree in Partition Appeal No.49 of 2005 was passed on
17.09.2016, much after the death of the said appellant No.2 without taking
note of the fact that the appellant No.2 of the said Partition Appeal No.49 of
2005 namely Isar Sahu died during the pendency of the said appeal before
the learned first appellate court. It is next submitted that is a settled
principle of law that a decree passed in favour of or against a dead person is
a nullity as has been held 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)
hence, this appeal be disposed of as prayed for.
Having heard the submissions of the learned counsel for the appellants,
this Court is of the considered view that since the impugned judgment passed
in Partition Appeal No.49 of 2005 dated 17.09.2016 is a nullity having been
passed in respect of dead person being appellant No.2 namely Isar Sahu,
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.
Accordingly, this Second Appeal is dismissed being not maintainable.
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 Isar Sahu of Partition Appeal
No.49 of 2005. 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 first appellate
court to have the decree reopened and to have the legal representatives of
the deceased appellant No.2 namely Isar Sahu of Partition Appeal No.49 of
2005 brought on record in that court.
In view of disposal of the instant Second Appeal, interlocutory
application, if any stands disposed of being infructuous.
Animesh/ (Anil Kumar Choudhary, J.)
