Dismissed

Supriya Sharma v. Sulochana Sharma

Jharkhand HC10 Sept 2024FA/105/2024

Case brief

AI extract

What is this about?

First appeal against a decree passed against a defendant who had died before the judgment. Relying on Supreme Court precedent, the court held the decree was a nullity and dismissed the appeal as not maintainable, leaving the appellants free to seek impleadment of legal representatives before the trial court.

What did the court decide?

Appeal dismissed as not maintainable; liberty to move the trial court to reopen the decree and implead the deceased defendant's legal representatives.

Supriya Sharma Vs Sulochana Sharma — Property and Title | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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F.A. No. 105 of 2024

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Supriya Sharma, W/o Late Aditya Narayan Sharma, aged about 39 years, R/o Arvind Bhawan, Near Rani Sati Mandir, Bompass Town, P.O., P.S. & District –Deoghar.

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Aayush Sharma, aged about 15 years,

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Aayushi Sharma, aged about 13 years, Both appellant nos. 2 and 3 represented through their natural guardian i.e. mother Supriya Sharma, W/o Late Aditya Narayan Sharma (Defendant No.2), aged about 39 years, resident of Arvind Bhawan, Near Rani Sati Mandir, Bompass Town, P.O., P.S. & .... .... ….

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District –Deoghar. Appellants

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Versus

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Sulochana Sharma, aged about not known to appellant, wife of Jugal Kishore Sharma, resident of near Daihatta Durga Mandir, Jamalpur P.O. & P.S. –Jamalpur, Subdivision Cum District- Munger (Bihar), Pin-811214

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Shayam Sunder Sharma, aged about not known to appellant, Son of Late Indira Prakash Sharma, resident of New Millan Palli, Care Of Laddu Gopal Sweets, P.O.+P.S.- Sililguri, Subdivision & DistrictSiliguri (West Bengal) PIN - 734005

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Sunita Devi, aged about not known to appellant, Wife of Pawan Khandelwal, resident of in Front Of Eye Hospital, Raniganj, P.O. & P.S. –Raniganj, Sub-Division –Durgapur, District- Burdwan (West Bengal), PIN- 713347

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Arvind Sharma, aged about not known to the appellant, Son of Late Indira Prakash Sharma

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Srikant Sharma, aged about not known to the appellant, Son of Late Indira Prakash Sharma

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Shashikant Sharma, aged about not known to appellant, Son of Late Indira Prakash Sharma, Respondent No. 4, 5 & 6 all resident of Arvind Bhawan, Beside the Rani Sati Mandir, Bompas Town, P.O., P.S. & District -Deoghar .... .... .... Respondents

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------

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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------ For the Appellants : Mr. Sameer Ranjan, Advocate

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------

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Order No.03 Dated- 10.09.2024

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Heard the parties.

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The learned counsel for the appellants submits that the judgment and decree passed in Original Suit No. 99 of 2019 has been passed against a dead person being the defendant no.2 –Aditya

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Narayan Sharma.

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The learned counsel for the appellants files the photocopy of the death certificate of the defendant no.2 –Aditya Narayan Sharma who died on 16.02.2022; whereas the impugned judgment has been passed on 27^th Day of March, 2023.

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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 against dead persons, this first appeal is not maintainable having been preferred against the judgment which is nullity, hence this first appeal is dismissed being not maintainable.

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The learned counsel for the appellants submits that the appellants will approach the court below for impleading the legal representatives of the deceased defendant no.2 of Original Suit No.99 of 2019. 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) .

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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 defendant no.2 of the said Original Suit No.99 of 2019 brought

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on record in that court.

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

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Sonu-Gunjan/-

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(Anil Kumar Choudhary, J . )

Supriya Sharma v. Sulochana Sharma

Case brief

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Supriya Sharma v. Sulochana Sharma

Case brief

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