Quashed

Ram Prakash v. Virender and others

Himachal Pradesh HC14 Nov 2024RSA/28/2024

Case brief

AI extract

What is this about?

The High Court held that a decree passed against a deceased party without impleading legal representatives is a nullity. It quashed the judgment and decree and remanded the matter for fresh disposal with directions to decide within six months.

What did the court decide?

The judgment and decree of the First Appellate Court and trial Court are set aside; the matter is remanded to the trial court for fresh disposal within six months; parties directed to appear on 12.12.

Ram Prakash Vs Virender and others — Succession and Inheritance | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No. 28 of 2024 Decided on: 14.11.2024

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Ram Prakash & others ...Appellants. Versus Virender & others ...Respondents. Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?¹ For the appellants: Mr. K.D. Sood, Senior Advocate with Mr. Rahul Gathania, Advocate. For the respondents: Mr. Maan Singh, Advocate, for respondents No. 1, 9, 10, 17(a) to 17(c), 18(a) to 18(d), 21(b) to 21(d). Mr. Sudhir Bhatnagar, Advocate, for respondents No. 24, 25 and 26.

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Virender Singh, Judge (Oral)

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CMP (M) No. 763 of 2024 in RSA No. 28 of 2024

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The appellants have preferred the present Regular Second Appeal against the judgment and decree dated 15.12.2023, passed by the Court of learned Additional District Judge, Kullu, District Kullu, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No. 26 of 2023, titled as Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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‘Ram Prakash & others verus Virender & others’, whereby, the learned First Appellate Court has dismissed the appeal, preferred by the appellants against the judgment and decree dated 25.7.2023, passed by the Court of learned Civil Judge, Kullu, District H.P. in Civil Suit No. 10/2010/287/2021, titled as ‘Ram Prakash versus Virender & others.’

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By way of present application, an application has been moved under Order 22 Rules 4, 9 and 11 read with Section 151 CPC and Section 5 of the Limitation Act, for bringing on record the LRs of respondent No. 5, Smt. Usha Devi @ Kiran Devi, who died on 26.1.2018, after setting aside the abatement.

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It is not in dispute that the death of Smt. Usha Devi respondent No. 5, had taken place on 26.1.2018, when the lis was pending before the learned trial Court. Moreover, the matter has been decided against a dead person, as, no efforts have been made to bring on record the LRs of respondent No. 5 Smt. Usha Devi.

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Decree passed by the Court, for or against a dead person, is nullity. The Hon’ble Apex Court in ‘Gurnam Singh (Dead) through Legal Representatives & Others versus

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Gurbachan Kaur (Dead) by Legal Representatives’ (2017)

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13 SCC 414, has observed, in para No.21, as under:-

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“It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) 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’.”

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In view of the above, this Court has left with no option, but to set aside the judgment and decree passed by the learned First Appellate Court, as well as, by learned trial Court and to remand the matter back to the learned trial Court for fresh disposal, in accordance with law.

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Since, the lis is pending between the parties from the year 2010, as such, it is expected from learned trial Court to decide the matter expeditiously, preferably within a period of six months, from the date of receipt of the record.

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With these observations, CMP No. 763 of 2024 is disposed of. Consequently, the present appeal is also disposed of by setting aside the judgment and decree dated 15.12.2023,

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passed by the learned First Appellate Court, as well as, judgment and decree dated 25.7.2023, passed by learned trial Court.

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