Partly allowed

Murgappa Chanappa Holkunde Died Lrs.Nagappar.M. v. Basappa Veerpaksgappa Holkunde and Others.

Bombay HC17 Aug 2012SA/128/1986

Case brief

AI extract

What is this about?

This second appeal challenged a District Court judgment that set aside a lower court decree, noting the plaintiff was deceased during the appeal. The High Court held a judgment against a dead person is a nullity and quashed the lower appellate judgment, remitting the matter to the District Court for dismissal after bringing the legal representative on record.

What did the court decide?

Impugned judgment and decree of lower Appellate Court quashed and set aside. Matter remitted to District Court to bring legal representative on record and decide on merits.

Murgappa Chanappa Holkunde Died… — Civil Procedure and Limitation | Bombay HC (2012)

¶1

1 SA 128.86

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

SECOND APPEAL NO. 128 OF 1986

¶4

Murgappa Chanappa Holkunde, Age : 73 Years, Occu. : Agril., (Died on 12.05.1983 by L.R.s')

¶5

Nagappa Murgappa Holkunde, Occupation : Agriculture, R/o Kasar Sirsi, Tq. Nilanga, Dist. Latur. .. Appellant

¶6

Versus

¶7

Basappa Veerpakshappa Holkunde, Age : 35 Years, Occu. : Agril., R/o Kasar Sirsi, Tq. Nilanga, Dist. Latur.

¶8

Nagappa Veerpakshappa Holkunde, Age : 30 Years, Occu. : Agril., R/o as above.

¶9

Pradeep Veerpakashappa Holkunde, Age : 26 Years, Occu. : Agril., R/o as above. .. Respondents

¶10

Shri M. L. Dharashive, Advocate for the Appellant. Shri M. V. Deshpande, Advocate for the Respondent No. 2.

¶11

2 SA 128.86

¶12

CORAM : S. V. GANGAPURWALA, J.

¶13

RESERVED FOR JUDGMENT ON : 09/08/2012

¶14

JUDGMENT PRONOUNCED ON : 17/08/2012

¶15

JUDGMENT :

¶16

. One Murgappa had filed suit bearing R.C.S. No. 133/1982 against the present respondents/original defendants for possession of the suit property admeasuring 25 feet South-North and 10 feet East-West. The Trial Court decreed the suit. Aggrieved thereby the defendants filed an appeal before the District Court. The District Court allowed the appeal. The legal heir of the original plaintiff has filed present second appeal.

¶17

Though the second appeal was admitted on 02.07.1986 on the ground that construction of document and appraisal of evidence constitute substantial question of law. When the matter was being heard on 03.07.2012 it transpired that following questions also involves the substantial question of law :

¶18

i) What would be the effect of the sole respondent having died during the pendency of the Appeal before the District Court ?

¶19

3 SA 128.86

¶20

ii) If the factum of death of the respondent before the District Court is not brought to the notice of the Court or the appellants, then whether still the Judgment would be binding ?

¶21

The matter was heard on the above said substantial questions of law.

¶22

Shri Dharashive, the learned counsel for the appellant/legal heir of the original plaintiff contends that the judgment and decree passed by the lower Appellate Court is a nullity as prior to the judgment and decree passed by the lower Appellate Court, the original plaintiff had died. His legal representatives were not brought on record. The judgment against a dead person is a nullity. The judgment of the lower Appellate Court has the effect of setting aside the judgment and decree passed in favour of original plaintiff. The said judgment and decree of the Trial Court could not have been reversed in absence of the plaintiff or his legal representative. The legal representatives of the original plaintiff were not brought on record. As such, the said judgment being against dead person is bad in law.

¶23

Shri M. V. Deshpande, the learned counsel for the

¶24

4 SA 128.86

¶25

respondent No. 2/original defendant supports the judgment and submits that as per Order XXII Rule 10-A of the Code of Civil Procedure (hereinafter referred as to the "C. P. C." for the sake of brevity) it was the duty of the advocate for the respondent/plaintiff to intimate about the death. The learned advocate for the respondent/plaintiff failed to perform his duty for which the present respondent cannot be penalized. According to the learned counsel in absence of any pursis being filed, the Court or the appellant before the District Court could not get the knowledge. Though the abatement of appeal is automatic, but the proceedings did not stand closed, unless and until an order is passed by the Court and when the Court did not get the knowledge and the order was not passed closing the matter, the Court was competent to deliver the judgment. The learned counsel relies on the following judgments of the Apex Court.

¶26

i) T. Gnanvel Vs. T. S. Kanagaraj and anr. reported in AIR 2009 SC 2367.

¶27

ii) Bhagwan Swarup Vs. Mool Chand reported in 1983(2) SCC 132.

¶28

iii) Gangadhar Vs. Rajkumar reported in 1984(1) SCC 121.

¶29

5 SA 128.86

¶30

iv) K Naina Mohamed (Dead) through L.Rs. Vs. A. M. Vasudevan Chettiar (D) by LRs and ors reported in 2010 (7) SCC 603.

¶31

v) Perumon Bhagvathy Devaswom Vs. Bhargavi Amma (Dead) By LRs & ors. reported in 2008(8) SCC 321.

¶32

The learned counsel submits that the impugned judgment is not a nullity. The learned counsel further contends that, anyhow, the legal heir of the deceased plaintiff has filed present second appeal and the same can be considered on merits.

¶33

With the assistance of learned counsel I have gone through the judgment. It is a matter of record that the original plaintiff died on 12th May, 1983 i. e. after the appeal was filed before the District Court and during the pendency of appeal. The judgment has been delivered by the District Court on 07th December, 1985. Prior to the hearing of the appeal by the District Court, the original plaintiff/respondent in appeal died.

¶34

It is settled position of law that a judgment against a dead person is a nullity. The decree of the Trial Court was passed in favour of the plaintiff. In an appeal by the defendants, the plaintiff who was respondent in the said appeal had died prior to the hearing of the appeal. The legal representatives of the

¶35

6 SA 128.86

¶36

original plaintiff/respondent in appeal were not brought on record and the judgment was delivered against a dead person. In such circumstance, the said judgment cannot be said to have a binding effect.

¶37

The judgment of the Apex Court relied by the learned counsel were in respect of condonation of delay, setting aside abatement. There cannot be any dispute about the proposition laid down in the said judgments. The knowledge of death would be presumed after the intimation is given by the advocate of the deceased to the Court and the other side as envisaged under Order XXII Rule 10-A of the C. P. C. and as such, while condoning the delay and setting aside abatement, the said aspect is required to be considered. The position would be different in case the respondent in appeal in whose favour a decree is passed by the Trial Court is dead and the Appellate Court passes a judgment against such a dead person. The same would be a nullity in the eyes of law. Even in the case of T. Gnanvel Vs. T. S. Kanagaraj and anr. referred supra the Apex Court has observed thus, "merely because there is failure to intimate the knowledge of the death of the defendant to the Court as well as to the plaintiff, it cannot be said that the Court is correct in law to grant exemption to the plaintiff from bringing

¶38

7 SA 128.86

¶39

on record the heirs and legal representatives of the defendant after the decree was passed."

¶40

For the above reasons it will have to be held that the judgment passed by the lower Appellate Court cannot be sustained and deserves to be quashed and set aside.

¶41

However, as the factum of death of deceased was not intimated to the Court as per Order 22 Rule 10-A of the C. P. C. it will be expedient to afford an opportunity to the original defendant to contest the appeal on merits before the District Court, as in the present second appeal only substantial question of law can be considered and not the factual matrix.

¶42

The appeal as such is partly allowed. The impugned judgment and decree passed by the lower Appellate Court is set aside. The matter is remitted to the District Court. The present respondents, who are the appellants before the District Court shall bring on record the present appellant as legal representative of the plaintiff. The parties shall appear before the concern District Court on 24th September, 2012. The appellant before the District Court shall carry out the necessary amendment in appeal memo and bring present appellant on

¶43

8 SA 128.86

¶44

record as legal representative of original plaintiff. No separate notice would be necessary to the present appellant. The District Court thereafter shall decide the appeal on its own merits. Record and Proceedings be sent back forthwith.

¶45

Sd/- [ S. V. GANGAPURWALA, J. ]

¶46

bsb/Aug. 12

Murgappa Chanappa Holkunde Died Lrs.Nagappar.M. v. Basappa Veerpaksgappa Holkunde and Others.

Case brief

What is this about?

What did the court decide?

Murgappa Chanappa Holkunde Died Lrs.Nagappar.M. v. Basappa Veerpaksgappa Holkunde and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vijaykumar Narhari Deshpande Vs the State of Maharashtra

Sarubai Malhari Chormale Vs Ganpati Bapu Saigane

Bhimrao Jayaji Gaikwad Died Lrs Kalabai Bhimrao Gaikwad and Ors. Vs the State of Maharashtra and Anr.

Gmidc Aurangabad through Executive Engineer Minor Irrigation Division Latur Vs Sunil Vithal Chole and Anr.

Gmidc Aurangabad through Executive Engineer Minor Irrigation Divn Latur Vs Namdeo Shivram Chole and Anr.

Gmidc Aurangabad through Executive Engineer Minor Irrigation Divn Latur Vs Namdeo Shivram Chole and Anr.