The High Court dismissed the second appeal as not maintainable because the impugned judgment was a nullity, having been passed in favor of a deceased person whose legal representatives were not brought on record. An interlocutory application was disposed of 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 SA No. 64 of 2018
Sofi Kuer & Ors. ...… Appellants
Versus
Most. Bimla Kuer & Ors. ......… Respondents
Coram: HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Appellant : Mr. Prabhat Kumar , Adv.
05 / 22.03.2023 I.A. No. 4619 of 2021
Heard the learned counsel for the appellants.
Learned counsel for the appellants submits that impugned judgment and decree in Civil Appeal no. 44 of 2012, has been passed in respect of a dead person, Ramsundar Singh, who is appellant no. 15 herein, and who died on 14.08.2012 , during pendency of the Civil Appeal no. 44 of 2012 before learned First Appellate court below.
It is a settled principle of law that a decree passed in favour of a party who was dead or against the party who was dead is a nullity as has been observed 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.”
Hence this Court is of the considered view that
since the impugned judgment against which this appeal has been preferred is a nullity having been passed in favour of a dead person, this second appeal is not maintainable having been preferred against the judgment which is nullity, hence this second appeal is dismissed being not maintainable.
The learned counsel for the appellants submits that the appellants will approach the first appellate court for impleading the legal representatives of the deceased appellant no. 15. The learned counsel for the appellants also places before this Court, the order passed by a coordinate Bench of this Court in the case of Alimuddin Ansari Vs. Wasia Khatoon , reported in (2004) 4 JCR 700 (Jhr). It is made clear that this order will not stand in the way of the appellants taking such steps as are permissible in law in the lower court to have the decree reopened and to have the legal representatives of the appellant no. 15 brought on record in that court.
In view of disposal of the Second Appeal, all the interlocutory applications are disposed of being infructuous.
( ANIL KUMAR CHOUDHARY, J.)
Smita/-
2 issues framed by the court
Whether a second appeal is maintainable against a judgment and decree passed in favor of a deceased party.
Whether the impugned judgment being a nullity, the appeal stands dismissed for lack of maintainability.
Colour shows how this judgement treated each authority
Kishun alias Ram Kishun (Dead) Through LRS. Vs. Behari (Dead) By LRSFollowed¶10
(2005) 6 SCC 300 · Who else cites this
Alimuddin Ansari Vs. Wasia KhatoonReferred¶14
(2004) 4 JCR 700 (Jhr)
Sofi Kuer & Ors.
Most. Bimla Kuer & Ors.
Anil Kumar Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
