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
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