The High Court dismissed a second appeal filed against a title appeal judgment that was declared a nullity because it was passed against intended parties who were deceased during its pendency.
The second appeal was dismissed as not maintainable; the interlocutory application was dismissed as infructuous.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 104 of 2019
.... .... …. Rezan Topno & Ors. Appellants Versus .... .... Sudhar Barjo & Ors. .... Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------ For the Appellants : Mr. Sanjeev Kr. Sahay, Advocate ------
Order No.06 Dated- 02.03.2023
I.A. No.1728 of 2021
It is submitted by the learned counsel for the appellants that the impugned judgment and decree has been passed against two dead persons namely Hardugan Topno who died on 10.03.2018, who was the appellant no.4 in Civil Appeal (Title Appeal) No. 91 of 2008 though because of printing error, in para-3 of this interlocutory application ‘Hardugan Topno’ has been mentioned as the respondent no.4. It is next submitted that the other dead person in favour of whom the judgment and decree of Civil Appeal (Title Appeal) No. 91 of 2008 has been passed is Mansidh Topno @ Mansid Topno, who was the appellant no.5 in Civil Appeal (Title Appeal) No. 91 of 2008. It is next submitted that the said Mansidh Topno @ Mansid Topno died on 13.02.2014 during the pendency of the said appeal though in para-6 of this interlocutory application, because of printing error, it has been mentioned that ‘Mansidh Topno @ Mansid Topno was the respondent no.5 in Civil Appeal (Title Appeal) No. 91 of 2008’. It is next submitted that the impugned judgment and decree have been passed against two dead persons, the same is a nullity.
It is a settled principle of law that a decree passed in favour of or against a dead person is a nullity as has been held by the Hon’ble Supreme Court of India in the case of Kishun alias Ram Kishun (Dead) Through LRS. Vs. Behari (Dead) By LRS., reported in (2005) 6 SCC 300 , para-6 of which reads as under:-
“6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned Senior Counsel for
the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside. (Emphasis supplied)
Since the impugned judgment and decree passed in Civil Appeal (Title Appeal) No. 91 of 2008 is itself a nullity, hence, this Court is of the considered view that this Second Appeal is not maintainable having been preferred against the impugned judgment which is itself admittedly a nullity.
Accordingly, this Second Appeal is dismissed, being not maintainable, having been preferred against the judgment which is a nullity.
In view of the disposal of the instant Second Appeal, this interlocutory applications stand dismissed being infructuous.
(Anil Kumar Choudhary, J . )
Sonu-Gunjan/-
2 issues framed by the court
Whether a second appeal filed against a judgment and decree passed against dead persons is maintainable as the impugned order is a nullity.
Whether the legal representatives of the dead parties must be brought on record when they died during the pendency of an appeal.
Colour shows how this judgement treated each authority
Kishun alias Ram Kishun (Dead) Through LRS. Vs. Behari (Dead) By LRS.Explained¶9
(2005) 6 SCC 300 · Who else cites this
1 provisions across 1 enactments
Rezan Topno & Ors.
Sudhar Barjo & Ors.
Anil Kumar Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Anil Kumar Choudhary
Parties & counsel
