Dismissed

Rubeda Khatoon v. Kayum Khan

Jharkhand HC7 Aug 2023SA/99/2018

Case brief

AI extract

What is this about?

The Court dismissed the second appeal as un-maintainable because the impugned judgment and decree were passed against a deceased person. Relying on precedent, the Court held such a decree is a nullity. The matter was disposed of as interlocutory applications became infructuous.

What did the court decide?

Single Second Appeal dismissed as un-maintainable; interlocutory applications disposed of as infructuous.

Rubeda Khatoon Vs Kayum Khan — Civil Procedure and Limitation | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 99 of 2018

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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------ For the Appellant : None ------

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Order No.08 Dated- 07.08.2023

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Perusal of the record reveals that the sole respondent died in the year 2014 before passing of the impugned judgment and decree of Civil Appeal No. 32 of 2016 by the learned Principal District Judge, Bokaro on 12.09.2017 and even passing of the judgment and decree by the learned trial court in Title Suit No. 21 of 2009 as is evident from the report of the process server. So, it is crystal clear that the impugned judgment and decree has been passed in respect of a dead person.

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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:-

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“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.

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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 respect 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

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maintainable.

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In case the appellant approached the learned court concerned for impleading the legal representatives of the deceased sole respondent of this appeal on the basis of 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); this order will not stand in the way of the appellant 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 sole respondent brought on record in that court.

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In view of disposal of the second appeal, all the interlocutory applications are disposed of being infructuous.

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(Anil Kumar Choudhary, J . )

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Sonu-Gunjan/-

Rubeda Khatoon v. Kayum Khan

Case brief

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Rubeda Khatoon v. Kayum Khan

Case brief

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