This appeal is filed by the legal representatives of
original plaintiff against the Judgment and order dated
23/11/2018 passed by the learned Ad-hoc District Judge-1,
Kelapur, whereby the learned District Judge was pleased to
dismiss Regular Civil Appeal No.8/2013.
The short question which arises for consideration in
this appeal is "Whether the impugned Judgment and order of
learned Ad-hoc District Judge-1, Kelapur is legally sustainable in
law ?." In other words, the question is whether learned Ad-hoc
District Judge-1, Kelapur had jurisdiction to decide the appeal
when the appellant had expired during the pendency of appeal
and their legal representatives were not brought on record ?
16. In Kiran Singh and others Vrs. Chaman Paswan and
others, reported in AIR 1954 SC 340, fundamental principle of law is laid down by the Hon'ble Apex Court that decree passed by a Court without jurisdiction is a nullity and its invalidity can be questioned in any proceeding including in execution proceedings or even in a collateral proceedings whenever such decree is sought to be enforced by the decree holder, the reason that the defect of this nature affects the very authority of the Court in passing the said decree and goes to the root of the case.
18. The above principle in my considered view,
squarely applies to this case because it is settled law that the
decree passed against the dead person is a nullity.
19. The sum and substance of the discussion is that the
appellants who are legal representatives of the deceased - plaintiff and to whom right to sue has devolved, had therefore right to question the legality of the impugned Judgment and order, inter alia on the ground of it being a nullity.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 208 OF 2019
Narhari s/o Shrawan Moon Vs Silas s/o Kannobaji Punwatkar,
CORAM : V. G. BISHT, J.
DATED : 10/03/2022
1. Heard. Admit. Heard finally with the consent of
learned counsel for the parties.
2. This appeal is filed by the legal representatives of
original plaintiff against the Judgment and order dated
23/11/2018 passed by the learned Ad-hoc District Judge-1,
Kelapur, whereby the learned District Judge was pleased to
dismiss Regular Civil Appeal No.8/2013.
3. For the sake of convenience, the parties to the
proceedings are described as they were described in the
proceedings before the learned Ad-hoc District Judge-1, Kelapur.
Some of the relevant facts, in brief for deciding this second appeal,
are as under :-
4. The deceased - plaintiff i.e. father of the appellant
Nos.1 and 2 herein had filed Regular Civil Suit No.84/2007 for
declaration that defendant No.1 / respondent No.1 - Silas
Punwatkar and respondent No.2 - Nalini Tenpe are not born from
the womb of deceased - Jaiwantabai w/o Kanhobaji Punwatkar
and are not son and daughter of said Jaiwantabai Punwatkar. The
deceased - plaintiff had also challenged the order dated
13/08/2007 passed by Sub-Divisional Officer, Wani in Appeal
No.RTS-64/4/2006-2007 Mouza Nipani Pimpri, Tq. Wani, Dist.
Yavatmal. The deceased - plaintiff had also joined his sister Vijaya
Khade as proforma defendant. It was the contention that the
plaintiff's sister Jaiwantabai married with Kanhoba Punwatkar.
Jaiwantabai had died issueless on 23/08/1992. Kanhoba had
performed second marriage with Ahilyabai d/o Laxman Taksande
in 1964-1965, and respondent Nos.1 and 2 are son and daughter
of Kausalyabai. In this factual background, suit for declaration and
setting aside the order passed by the Sub-Divisional Officer, Wani
was filed.
5. After appreciating case of the parties, learned 2nd
Joint Civil Judge, Junior Division, Wani, Dist. Yavatmal was
pleased to dismiss the suit. The deceased - plaintiff preferred
Regular Civil Appeal No.8/2013, wherein the Ad-hoc District
Judge-1, Kelapur was also pleased to dismiss the appeal.
6. It is against this Judgment of learned Ad-hoc
District Judge-1, Kelapur. The legal representatives of deceased -
plaintiff has filed the present appeal.
7. Heard Shri A. V. Bhide, learned counsel for the
appellants and Shri M. L. Chouhan, learned counsel for the
respondent Nos.1 and 2.
8. The only issue raised by the learned counsel for the
appellants is that during the pendency of appeal before the
learned Ad-hoc District Judge-1, Kelapur, the original plaintiff
died and admittedly, since legal representatives were not brought
on record, the impugned Judgment came to be passed on merits
against the said persons. The learned counsel for the respondents
does not dispute this factual position.
9. The short question which arises for consideration in
this appeal is "Whether the impugned Judgment and order of
learned Ad-hoc District Judge-1, Kelapur is legally sustainable in
law ?." In other words, the question is whether learned Ad-hoc
District Judge-1, Kelapur had jurisdiction to decide the appeal
when the appellant had expired during the pendency of appeal
and their legal representatives were not brought on record ?
10. There is no dispute to the fact that the original
plaintiff died on 28/03/2013 i.e. during the pendency of Regular
Civil Appeal No.8/2013. The impugned Judgment and order came
to be passed on 23/11/2018 i.e. after the death of deceased -
plaintiff. No steps were taken by any of the legal representatives
representing the deceased - plaintiff to whom the right to sue had
devolved, to file an application under Order 22 Rule 3 of the Code
of Civil Procedure, 1908 (For short, "the Code") for bringing their
names on record in place of deceased - plaintiff to enable them to
continue the lis.
11. On going through the record, it also transpires that
though the original plaintiff died on 28/03/2013, the appellants
herein were not aware about the pendency of Regular Civil Appeal
No.8/2013 and therefore, they could not bring themselves on
record. It is only after the decision of Regular Civil Appeal
No.8/2013, the counsel for the original plaintiff informed the
appellants about the dismissal of appeal on 23/11/2018. It seems
that even the learned counsel representing the deceased - plaintiff
was also not aware of the death of the original plaintiff. Be that as
it may, the fact remains that during the pendency of appeal, the
original plaintiff had died. The legal representatives were not
brought on record in accordance with the provisions of Order 22
Rule 3 of the Code.
12. The law on the point is well settled. On the death
of party in appeal, if no application was made by the party
concerned to the appeal or by the legal representatives of the
deceased to whom right to sue was 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 after
expiry of 90 days from the death of the party. In other words, on
91st day, there is no appeal pending before the Court. It is
"Dismissed as abated".
13. I may point out that the Order 22 Rule 3(2) of the
Code applies in the case of death of the appellant - plaintiff and
provides the consequences for not filing the application for
substitution of legal representatives by the parties concerned
within the time prescribed.
14. In the case at hand, Order 22 Rule 3(2) of the Code
came into operation because the appellant - plaintiff expired
during the pendency of the first appeal and no application was
filed to bring his legal representatives on record. As a necessary
corollary, the legal effect of non-compliance of Order 22 Rule 3(2)
of the Code therefore, came into operation resulting in dismissal
of First Appeal as abated on the expiry of 90 days from
28/03/2013 i.e. on 28/06/2013. Learned Ad-hoc District Judge-1,
Kelapur therefore, had ceased to have jurisdiction to decide the
first appeal which stood already dismissed on 28/06/2013. Really
speaking, there was no pending appeal on and after 28/06/2013.
15. In my considered view, the appeal so abated before
the Ad-hoc District Judge-1, Kelapur could have been revived for
hearing only when firstly, the proposed legal representatives of
deceased - plaintiff had filed an application for substitution of
their names and secondly, they had applied for setting aside the
abatement under Order 22 Rule 9 of the Code and making out
therein sufficient cause for setting aside abatement and lastly, had
filed the application under Section 5 of the Limitation Act seeking
condonation of delay in filing substitution application under Order
22 Rule 3 of the Code beyond statutory period of 90 days. If these
applications had been allowed by the First Appellate Court, the
First Appeal could have been revived for final hearing but not
otherwise. No such case was made out before the learned Ad-hoc
District Judge-1, Kelapur inasmuch as no such applications had
been filed.
16. In Kiran Singh and others Vrs. Chaman Paswan and
others, reported in AIR 1954 SC 340, fundamental principle of law is laid down by the Hon'ble Apex Court that decree passed by a Court without jurisdiction is a nullity and its invalidity can bequestioned in any proceeding including in execution proceedings or even in a collateral proceedings whenever such decree is sought to be enforced by the decree holder, the reason that the defect of this nature affects the very authority of the Court in passing the said decree and goes to the root of the case.
17. Similar principle is enunciated in the case of
Gurnam Singh (dead) through legal representatives and others
Vrs. Gurbachan Kaur (dead) by legal representatives, reported in
(2017) 13 Supreme Court Cases 414 relied on by learned counsel
for appellant.
18. The above principle in my considered view,
squarely applies to this case because it is settled law that the
decree passed against the dead person is a nullity.
19. The sum and substance of the discussion is that the
appellants who are legal representatives of the deceased - plaintiff
and to whom right to sue has devolved, had therefore right to
question the legality of the impugned Judgment and order, inter
alia on the ground of it being a nullity.
20. For the aforesaid reasons, I pass the following
order :-
ORDER
i] The appeal is allowed.
ii] The impugned Judgment and order dated
23/11/2018 passed by the learned Ad-hoc District
Judge-1, Kelapur in Regular Civil Appeal No.8/2013
is set aside.
iii] Regular Civil Appeal No.8/2013 is restored to its
original position.
iv] On being moved applications by the legal
representatives of the deceased - plaintiff for
substitution of their names, setting aside abatement
and seeking condonation of delay in filing
substitution application under Order 22 Rule 3 of the
Code, the same be considered on its merits. If at all
the applications including the appeal are to be
decided, it be decided on merits, by affording
opportunity to both the sides, within a period of six
months from the date of receipt of this order.
v] Order accordingly.
(V. G. BISHT, J.)
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