[Cites 6, Cited by 0]
Madhya Pradesh High Court
Babulal (Dead) Through Legal ... vs Damodar Prasad Sharma (Dead) Through ... on 28 November, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:30914
1 RP-1079-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 28th OF NOVEMBER, 2025
REVIEW PETITION No. 1079 of 2024
BABULAL (DEAD) THROUGH LEGAL REPRSENTATIVES 1(A)
BALRAM AND OTHERS
Versus
DAMODAR PRASAD SHARMA (DEAD) THROUGH LEGAL
REPRESENTATIVES (I) KAMLESH KUMAR AND OTHERS
Appearance:
Shri Ruchil Jain - Advocate for the petitioner.
Shri Avinash Chaturvedi - Advocate for the legal representatives of
respondent No.1.
ORDER
Heard on I.A. No.6662/2024, an application under Section 5 of the
Limitation Act seeking condonation of delay in filing the review petition.
For the reasons assigned in the application, which constitute sufficient
cause, the same is allowed. The delay in filing the review petition is hereby
condoned.
The present review petition has been filed under Order XLVII Rules 1
and 5 of the Code of Civil Procedure, 1908 seeking review and recall of the
order dated 17.01.2024 passed by this Court in W.P. No.4458/2009.
The principal ground urged by the review petitioners is that respondent
No.6 in the writ petition, namely, late Shri Babulal, had expired on
07.12.2010, and his son Ramshankar also passed away on 26.05.2021. It is
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submitted that late Shri Babulal was the only person in the family who was
actively pursuing the litigation and, after his demise, the remaining legal
heirs were unaware of the proceedings before this Court. Consequently, they
could not take steps to bring the legal representatives of late Shri Babulal on
record.
It is further submitted that counsel for respondent No.6 in the writ
petition had informed this Court on 15.05.2017 regarding the death of
Babulal, whereupon this Court directed the respondents to bring the legal
representatives of the deceased on record. Despite this, no substitution was
carried out, and the writ petition came to be decided on 17.01.2024 against a
deceased person. It is therefore contended that the order is a nullity in law.
Reliance is placed on the judgment of this Court in the matter of
Raniya Bai v. Tekmani Rathore & Ors., S.A. No.1171/2014, holding that an
order or decree passed for or against a dead person is void and
unenforceable. Further reliance is placed on the authoritative
pronouncements of the Apex Court in Kiran Singh v. Chaman Paswan, AIR
1954 SC 340; N. Jayaram Reddy v. LAO, (1979) 3 SCC 578; Ashok
Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567; and Amba Bai v.
Gopal, (2001) 5 SCC 570, laying down that an order passed against a
deceased person, without impleadment of his legal representatives, is a
nullity and its invalidity can be set up even in collateral proceedings.
Per contra, learned counsel for legal representatives of respondent
No.1/Damodar Prasad Sharma supported the order dated 17.01.2024 and
opposed the review petition.
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I have heard learned counsel for the parties and perused the record.
It is not disputed that petitioners herein/respondent No.6 (late Shri
Babulal) in writ petition, a necessary party whose rights were directly
affected by the adjudication, had expired long prior to the passing of the
order dated 17.01.2024. It is also undisputed that his legal representatives
were never brought on record despite specific knowledge of his death. The
order dated 17.01.2024, therefore, stands passed against a person who was
not alive on the date of its pronouncement.
The law on this point is well settled. An order or decree passed against
a dead person is a nullity, as it suffers from a fundamental jurisdictional
defect going to the root of the matter. The principle laid down in Kiran Singh
(supra) squarely applies, reiterating that a decree passed without jurisdiction
is void and may be challenged at any stage. The decisions in N. Jayaram
Reddy (supra), Ashok Transport Agency ( supra), Amba Bai ( supra) and
Raniya Bai (supra) further reinforce that adjudication in the absence of
substitution of legal representatives vitiates the entire proceedings.
In this background, the order dated 17.01.2024 cannot be sustained, as
it stands vitiated for having been passed against a deceased party without
affording an opportunity of hearing to his legal heirs who have a substantial
interest in the lis. This clearly constitutes an error apparent on the face of the
record, warranting review.
Consequently, the review petition deserves to be and is hereby
allowed. The order dated 17.01.2024 passed in W.P. No.4458/2009 is
recalled.
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The writ petition is restored to its original number and shall be listed
for hearing afresh after bringing on record the legal representatives of
deceased late Babulal. Let an appropriate application in this regard be filed
within three weeks from today.
Review petition stands allowed in the above terms.
(MILIND RAMESH PHADKE)
JUDGE
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