Madhya Pradesh High Court
Chandrasen Died Through Lrs A) ... vs 1. Smt. Sugandhi (Deleted) on 10 October, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 MCC-1478-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 10th OF OCTOBER, 2025
MISC. CIVIL CASE No. 1478 of 2023
CHANDRASEN DIED THROUGH LRS A) SHANTILAL JAIN AND
OTHERS
Versus
1. SMT. SUGANDHI (DELETED) AND OTHERS
Appearance:
Shri Vikaas Sinhal - Advocate for applicants.
Shri Sanjay Singh Kushwah - Government Advocate for respondent No.19/State.
ORDER
This application has been filed under Order 41 Rule 21 of CPC for
rehearing of Second Appeal No.144/2001 which was decided ex-parte by
order dated 17.11.2022.
2. This application has been filed on twin grounds i.e., that counsel for
applicant could not appear at the time of hearing and that the respondent
No.1 - Chandrasen, respondent No.3 -Indrasen, and respondent No.4 -
Vallabh Bhai had already expired during the pendency of the second appeal,
and their legal representatives were not brought on record. The present
application has been filed by the legal representatives of Chandrasen,
Chhotelal, Indrasen, and Vallabh Bhai. It is also submitted by counsel for
applicants that when the applicants tried to verify the cause of non-
appearance of the earlier counsel, the earlier counsel refused to assign any
reason.
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3. Heard learned counsel for the applicants.
4. Under Order 41 Rule 21 CPC, this Court can recall the ex parte
judgment passed in an appeal provided sufficient cause is shown by the party
concerned for not appearing at the time of hearing. In the present case, so far
as the absence of counsel for the applicants at the time of hearing of the
appeal is concerned, it is the case of the applicants themselves that the earlier
counsel had refused to assign any reason for his absence. Thus, it is clear that
the applicants have failed to give any sufficient cause for absence of his
counsel at the time of hearing.
5. Under these circumstances, the ex parte judgment passed by this
Court on 17.11.2022 in S.A. No.144/2001 cannot be recalled and the appeal
cannot be put for rehearing.
6. Now, the only question for consideration is that if the person(s) who
were respondents in the second appeal had already expired and their legal
representatives were not brought on record, then whether the appeal had
already stood abated or not ?
7. The Supreme Court in the case of Gurnam Singh (Dead) Through
Legal Representatives and others v. Gurbachan Kaur (Dead) by Legal
Representatives, reported in (2017) 13 SCC 414, has held as under:
"13. The short question which arises for consideration in this
appeal is whether the impugned order allowing the plaintiff's
second appeal is legally sustainable in law? In other words, the
question is whether the High Court had the jurisdiction to decide
the second appeal when the appellant and the 2 respondents had
expired during the pendency of appeal and their legal
representatives were not brought on record?
14. In a leading case of this Court in Kiran Singh v. Chaman
Paswan [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340], the
learned Judge Venkatarama Ayyar, J. speaking for the Bench in
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his distinctive style of writing laid down the following principle of
law being fundamental in nature: (AIR p. 342, para 6)
"6. ... It is a fundamental principle well established that a
decree passed by a court without jurisdiction is a nullity, and
that its invalidity could be set up whenever and wherever it is
sought to be enforced or relied upon, even at the stage of
execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or whether
it is in respect of the subject-matter of the action, strikes at
the very authority of the court to pass any decree, and such a
defect cannot be cured even by consent of parties."
15. The question, therefore, is whether the impugned
judgment/order is a nullity because it was passed by the High
Court in favour of and also against the dead persons? In our
considered opinion, it is a nullity. The reasons are not far to seek.
16. It is not in dispute that the appellant and the two respondents
expired during the pendency of the second appeal. It is also not in
dispute that no steps were taken by any of the legal representatives
representing the dead persons and on whom the right to sue had
devolved, to file an application under Order 22 Rules 3 and 4 of
the Code of Civil Procedure, 1908 (for short "the Code") for
bringing their names on record in place of the dead persons to
enable them to continue the lis.
17. The law on the point is well settled. On the death of a party to
the appeal, if no application is made by the party concerned to the
appeal or by the legal representatives of the deceased on whom
the right to sue has devolved for substitution of their names in
place of the deceased party within 90 days from the date of death
of the party, such appeal abates automatically on expiry of 90 days
from the date of death of the party. In other words, on 91st day,
there is no appeal pending before the Court. It is "dismissed as
abated".
18. Order 22 Rule 3(2) which applies in the case of the death of
appellant-plaintiff and Order 22 Rule 4(3) which applies in the
case of the respondent-defendant provides the consequences for
not filing the application for substitution of legal representatives
by the parties concerned within the time prescribed. These
provisions read as under:
18.1.Order 22 Rule 3(2)
"3. (2) Where within the time limited by law no application is
made under sub-rule (1) the suit shall abate so far as the
deceased plaintiff is concerned, and, on the application of the
defendant, the court may award to him the costs which he
may have incurred in defending the suit, to be recovered
from the estate of the deceased plaintiff."
18.2.Order 22 Rule 4(3)
"4. (3) Where within the time limited by law no application is
made under sub-rule (1), the suit shall abate as against the
deceased defendant."
19. In the case at hand, both the aforementioned provisions came
in operation because the appellant and the two respondents expired
4 MCC-1478-2023
during the pendency of the second appeal and no application was
filed to bring their legal representatives on record. As held above,
the legal effect of the non-compliance with Rules 3(2) and 4(3) of
Order 22 of the Code, therefore, came into operation resulting in
dismissal of second appeal as abated on the expiry of 90 days
from 10-5-1994 i.e. on 10-8-1994. The High Court, therefore,
ceased to have jurisdiction to decide the second appeal which
stood already dismissed on 10-8-1994. Indeed, there was no
pending appeal on and after 10-8-1994.
2 0 . In our considered view, the appeal could be revived for
hearing only when firstly, the proposed legal representatives of the
deceased persons had filed an application for substitution of their
names and secondly, they had applied for setting aside of the
abatement under Order 22 Rule 9 of the Code and making out
therein a sufficient cause for setting aside of an abatement and
lastly, had filed an application under Section 5 of the Limitation
Act seeking condonation of delay in filing the substitution
application under Order 22 Rules 3 and 4 of the Code beyond the
statutory period of 90 days. If these applications had been allowed
by the High Court, the second appeal could have been revived for
final hearing but not otherwise. Such was not the case here
because no such applications had been filed.
21. It is a fundamental principle of law laid down by this Court in
Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC
340] that a decree passed by the court, if it is a nullity, its validity
can be questioned in any proceeding including in execution
proceedings or even in collateral proceedings whenever such
decree is sought to be enforced by the decree-holder. The reason is
that the defect of this nature affects the very authority of the court
in passing such decree and goes to the root of the case. This
principle, in our considered opinion, squarely applies to this case
because it is a settled principle of law that the decree passed by a
court for or against a dead person is a "nullity" (see N. Jayaram
Reddy v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC 578] ,
Ashok Transport Agency v. Awadhesh Kumar [Ashok Transport
Agency v. Awadhesh Kumar, (1998) 5 SCC 567] and Amba Bai v.
Gopal [Amba Bai v. Gopal, (2001) 5 SCC 570] ).
22. The appellants are the legal representatives of Defendants 2
and 4 on whom the right to sue has devolved. They had, therefore,
right to question the legality of the impugned order inter alia on
the ground of it being a nullity. Such objection, in our opinion,
could be raised in appeal or even in execution proceedings arising
out of such decree. In our view, the objection, therefore, deserves
to be upheld. It is, accordingly, upheld."
8. The Supreme Court in the case of Amba Bai and others Vs. Gopal
and others reported in (2001) 5 SCC 570 has held as under :
"7. In the instant case, the deceased Radhu Lal, the second
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appellant died on 14-12-1990 and his death was not brought to the
notice of the Court and the learned Single Judge disposed of the
appeal on merits by dismissing the second appeal on 25-3-1991.
As the judgment in the second appeal was passed without the
knowledge that the appellant had died, the same being a judgment
passed against a dead person is a nullity. When the second
appellant Radhu Lal died on 14-12-1990, his legal representatives
could have taken steps to get themselves impleaded in the second
appeal proceedings and as it was not done, the second appeal
should be taken to have abated by operation of law. Therefore, the
question that requires to be considered is that when there was
abatement of the second appeal, could there be a merger of the
same with the decree passed by the first appellate court?
8 . Before considering the question of merger, we have to
consider the effect of abatement. When the second appeal had
abated and the legal representatives of the appellant were not
brought on record, the decree, which was passed by the first
appellate court, would acquire finality. A similar matter came up
before this Court in Rajendra Prasad v. Khirodhar Mahto [1994
Supp (3) SCC 314] wherein it was held that as a consequence of
the abatement of the appeal filed against final decree in a partition
suit, the preliminary decree would become final. In that case, the
appellants and Tapeshari Kuer filed a suit for partition of
immovable properties, including Plaint 4 and 5 properties. The
property originally belonged to one Bishni Mahto. He had two
sons, namely, Sheobaran Mahto and Ramyad Mahto. Tapeshari
Kuer was the daughter of Ramyad Mahto. Plaint 4 and 5 properties
were not partitioned between these two sons of Bishni Mahto.
Ramyad Mahto, the father of Tapeshari Kuer died and she
succeeded to the one-half of the undivided share of the two sons
of Bishni Mahto. Tapeshari Kuer had executed a gift deed in
favour of the appellants bequeathing her undivided interest
inherited from her father in respect of Plaint Item 4 property. The
trial court decreed the suit declaring the half share of Tapeshari
Kuer in Plaint 5 of the property. The appellants who had joined as
Plaintiffs 1 and 2 were held to have half share in Plaint Item 4 by
virtue of the gift deed executed by her. The defendants in the suit
filed an appeal and pending appeal, Tapeshari Kuer died. Her legal
heirs were not brought on record. The appellate court gave a
finding that Tapeshari Kuer was not the daughter of Ramyad
Mahto and the appellant did not acquire any interest in the
undivided share. The suit was dismissed. Original Plaintiffs 1 and
2 filed the second appeal before the High Court. The second
appeal was dismissed as the heirs of Tapeshari Kuer were not
brought on record. Original Plaintiffs 1 and 2 carried the matter to
this Court by special leave. It was contended that Plaintiffs 1 and 2
were entitled to the benefit of preliminary decree. Ultimately, this
Court held that whether Tapeshari Kuer was the daughter of
Ramyad Mahto or not was required to be gone into only when her
legal representatives were brought on record. It was held that the
decree against a dead person was a nullity and, therefore, the
6 MCC-1478-2023
declaration by the first appellate court that Tapeshari Kuer was not
a daughter of Ramyad Mahto was not valid in law. The High
Court had held that the decree of the appellate court was a nullity
and the respondent did not file any appeal against that part of the
decree, the result was that the preliminary decree became final.
* * * *
14. In the instant case, there is no question of the application of
the doctrine of merger. As the second appellant Radhu Lal died
during the pendency of the appeal, and in the absence of his legal
heirs having taken any steps to prosecute the second appeal, the
decree passed by the first appellate court must be deemed to have
become final. By virtue of the order passed by the first appellate
court, the plaintiff's suit for specific performance was decreed.
Failure on the part of the legal heirs of Radhu Lal to get
themselves impleaded in the second appeal and pursue the matter
further shall not adversely affect the plaintiff decree-holder as it
would be against the mandate of Rule 9 Order 22 of the Code of
Civil Procedure. The impugned order is, therefore, not sustainable
in law and the same is set aside and the appeal is allowed. The
executing court may proceed with the execution proceedings.
Parties to bear their respective costs."
9. Under these circumstances, this court is of considered opinion that
the applicants should have filed an application under Order 47 Rule 1 CPC
for recall of order dated 17.11.2022 on the ground that the appeal had
already abated, and the application for the said purpose under Order 41 Rule
21 CPC is not maintainable.
10. Accordingly, with liberty to the applicants to file an application
under Order 47 Rule 1 CPC for review of order dated 17.11.2022 passed in
S.A. No.144/2001 on the ground that the appeal had already stood abated,
this MCC is finally disposed of.
(G. S. AHLUWALIA)
JUDGE
Aman
