Madhya Pradesh High Court
Ashraf Khan vs Kherun Nisa on 1 May, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:11589
1 SA-468-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 1 st OF MAY, 2025
SECOND APPEAL No. 468 of 2006
ASHRAF KHAN AND OTHERS
Versus
KHERUN NISA AND OTHERS
Appearance:
Shri Jitendra Shukla, learned counsel for the appellants.
None for the respondents even though the matter is taken up in the
second round.
ORDER
1. Though the appeal was listed for hearing on IA No.3483/2025,
which is an application for urgent hearing of the appeal but with the consent
of learned counsel for appellants the same is finally heard.
2. This appeal under Section 100 of the CPC has been preferred by
the appellants/defendants being aggrieved by the judgment and decree dated
08.09.2005 passed in regular Civil Appeal No.4A/2005 by the District Judge,
Indore arising out of the judgment and decree dated 25.01.2003 by the Civil
Judge, Class-II, Sanver, District Indore in Civil Suit No.8A/1980.
3. For the purpose of decision of this appeal the facts need not be
narrated in detail. Suffice is to say that the plaintiff Shahjahan Bi, since
deceased, now being represented through her legal representatives, had
instituted an action against the defendants for declaration of title with respect
NEUTRAL CITATION NO. 2025:MPHC-IND:11589
2 SA-468-2006
to the suit land. The defendants 1 to 6 and 10 had contested the plaintiff's
claim by filing their written statement to the same. By judgment and decree
dated 25.01.2003 the plaintiff's claim was dismissed by the trial Court. Being
aggrieved by the said judgment and decree the plaintiff had preferred appeal
under Section 96 of the CPC before the lower appellate Court. During
pendency of the appeal she expired on 26.03.2005. However the said fact
was not brought to the knowledge of the lower appellate Court and her legal
representatives were not brought on record in her place. The hearing of the
appeal had also not concluded prior to date of her death and had in fact been
concluded on 31.08.2005 itself.
4. In ignorance of the fact of death of sole plaintiff the lower
appellate Court by the impugned judgment and decree allowed her appeal
and decreed her claim against which this appeal has been preferred by
defendants 2, 3 and 4.
5. By order dated 24.01.2017 the appeal was admitted on the
following substantial question of law :-
"A. Whether on account of death of sole appellant on
26.03.2005, the judgment passed by the appellate Court
dated 08.09.2005 subsequent to her death is nullity and
void?
6. Learned counsel for appellants has submitted that the sole
plaintiff/appellant before the lower appellate Court had expired during
pendency of the appeal and prior to conclusion of its hearing. The judgment
and decree passed without bringing her legal representatives on record is
hence a nullity, and nonest and void in the eye of law and the same having
been passed in favour of a dead person is not sustainable.
NEUTRAL CITATION NO. 2025:MPHC-IND:11589
3 SA-468-2006
7. Admittedly the sole plaintiff/appellant had expired during
pendency of the appeal on 26.03.2005. No steps for bringing her legal
representatives on record were taken within the stipulated period of
limitation i.e. 90 days after expiry of which the appeal stood automatically
abated by operation of law. No application for setting aside of abatement was
filed even after a period of 60 days therefrom hence the limitation for filing
such an application had also expired. Since the appeal had abated the same
could not have been decided on merits since there was no appeal in the eye
of law to be decided. The judgment and decree passed by the lower appellate
Court in an appeal which already stood abated is hence a nullity and nonest
in the eye of law.
8. The next question for consideration would be as regards the
course of action to be adopted in the present matter. In this appeal the legal
representatives of the sole plaintiff have been impleaded as parties by the
present appellants which is in effect substitution of her legal representatives.
It is well settled that substitution at any stage of the proceedings would enure
for all stages of the proceedings. Since the legal representatives of plaintiff
have been substituted in this appeal they would now be deemed to have been
substituted before the lower appellate Court also. However the appeal was
heard and decided by the lower appellate Court at the time when it had
abated and there was no appeal in the eye of law hence the judgment and
decree passed by it is a nullity.
9. As a result of the aforesaid discussion, the impugned judgment
and decree passed by the lower appellate Court is set aside and the matter is
NEUTRAL CITATION NO. 2025:MPHC-IND:11589
4 SA-468-2006
remanded back to it for permitting the legal representatives of sole plaintiff
to file an application for their substitution in her place. In case such an
application is filed by them it would be allowed by the lower appellate Court.
Thereafter the lower appellate Court shall proceed to decide the appeal on
merits.
10. The appeal is accordingly allowed. No order as to costs.
(PRANAY VERMA)
JUDGE
ns
