IMPORTANT POINTS
When upon death of plaintiff or defendants in suit their legal representatives not brought on record, suit against such parties abates automatically on expiry of 90 days from the date of death of the party.
Judgment/order for or against dead persons whose legal representatives not brought on record – Judgment and order, are nullity.

Headnote:(a) Code of Civil Procedure, 1908 – Order XXII Rules 3 and 4 – Appellant and respondents dying during pendency of second appeal – Their legal representatives not brought on record – Suit against such parties abates automatically on expiry of 90 days from the date of death of the party – Impugned judgment of High Court in second appeal, held without jurisdiction. (Para 18, 20)
       AIR 1954 SC 340 – Relied upon
       (b) Code of Civil Procedure, 1908 – Order XXII Rule 9 – Revival of suit abated under Order XXII, Rules 3 and 4 – Parties need to firstly, substitute the proposed legal representatives of the deceased persons – Secondly, they should apply for setting aside of the abatement under Order XXII Rule 9 – Lastly, should file an application u/s 5 of the Limitation Act, 1963 seeking condonation of delay in filing the substitution application – Instantly nothing has been done – Therefore the suit abated and could not be decided. (Para 21)
       (c) Administration of law – Judicial propriety – High Court deciding matter for and against dead persons whose legal representatives not brought on record – Judgment and order, held nullity. (Para 22)
       (1979) 3 SCC 578; (1998) 5 SCC 567; (2001) 5 SCC 570 – Relied upon
       (d) Administration of justice – Judicial propriety – question of nullity of a judgment/order – Can be raised in appeal or even in execution proceedings arising out of such decree – Such objection deserves to be upheld. (Para 23)
       Facts of the case:
       One Surjan Singh (defendant No.1) was the original owner of the suit land.
       On 06.05.1974, Surjan Singh entered into a contract to sell the suit land to one Gurbachan Kaur (plaintiff) for Rs.10,000/-per Killa. In terms of the contract, the sale deed of the suit land was to be executed by Surjan Singh in favour of Gurbachan Kaur on or before 28.01.1975.
       On 03.09.1974, Surjan Singh sold the suit land to Joginder Singh, Mehal Singh and Gurnam Singh. Gurbachan Kaur filed civil suit against Surjan Singh (defendant No.1) and subsequent purchasers, namely, Joginder Singh (defendant No.2), Mehal Singh (defendant No.3) and Gurnam Singh (defendant No.4). The suit was for specific performance of contract dated 06.05.1974 filed by Gurbachan Kaur against the aforementioned 4 defendants in relation to the suit land. The defendants contested the suit.
       The Trial Court dismissed the suit insofar as it pertained to grant of relief of specific performance of contract was concerned but decreed the suit by granting money decree for Rs.7000/-in plaintiff's favour. In this way, the suit was partly decreed and partly dismissed.
       The first Appellate Court dismissed the appeal filed by the plaintiff and affirmed the judgment/decree of the Trial Court.
       The High Court allowed the second appeal, set aside the judgment/decree of the two Courts below and decreed the plaintiff's suit for specific performance of the contract against the defendants in relation to the suit land.
       Finding of the Court:
       Impugned judgment/order is a nullity.
       Result: Appeal allowed.

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the legal representatives of defendant Nos. 2 and 4 against the final judgment and order dated 18.05.2012 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Regular Second Appeal No. 1148 of 1985 whereby the High Court allowed the plaintiff’s appeal, set aside the concurrent findings of the Trial Court and the First Appellate Court and decreed the plaintiff’s suit for specific performance of contract against the defendants in relation to the suit land.

3) The facts of the case lie in a narrow compass so also the controversy involved in the appeal is short. However, only relevant facts to appreciate the question involved are mentioned infra.

4) One Surjan Singh(defendant No.1) was the original owner of the suit land bearing Khasra Nos. 1806, 1807, 1808 and 1809 (new numbers 91R/2/3, 12, 9, 10, 11, 90R/6 and 15) measuring 43 Kanals 4 Marlas situated in village Rasulpur, Tahsil/District Amritsar (hereinafter referred to as "the suit land”).

5) On 06.05.1974, Surjan Singh entered into a contract to sell the suit land to one Gurbachan Kaur(plaintiff) for Rs.10,000/-per Killa. In terms of the contract, the sale deed of the suit land was to be executed by Surjan Singh in favour of Gurbachan Kaur on or before 28.01.1975.

6) On 03.09.1974, Surjan Singh sold the suit land to Joginder Singh, Mehal Singh and Gurnam Singh. This led to filing of the civil suit by Gurbachan Kaur against Surjan Singh(defendant No.1) and subsequent purchasers, namely, Joginder Singh(defendant No.2), Mehal Singh(defendant No.3) and Gurnam Singh(defendant No.4). The suit was for specific performance of contract dated 06.05.1974 filed by Gurbachan Kaur against the aforementioned 4 defendants in relation to the suit land. The defendants contested the suit. Parties went on trial.

7) By judgment/decree dated 29.08.1980, the Trial Court dismissed the suit insofar as it pertained to grant of relief of specific performance of contract was concerned but decreed the suit by granting money decree for Rs.7000/-in plaintiff's favour. In this way, the suit was partly decreed and partly dismissed.

8) Felt aggrieved, the plaintiff-Gurbachan Kaur alone filed the first appeal in the Court of District Judge. So far as the defendants are concerned, they did not file any appeal against the money decree suffered by them. By judgment/decree dated 06.11.1984, the first Appellate Court dismissed the appeal filed by the plaintiff and affirmed the judgment/decree of the Trial Court.

9) Felt aggrieved, the plaintiff-Gurbachan Kaur carried the matter further and filed Second Appeal before the High Court. The appeal was admitted for final hearing on substantial questions of law framed by the High Court.

10) During pendency of the second appeal, Gurbachan Kaur-appellant(plaintiff) died on 10.05.1994. Likewise, Joginder Singh (respondentdefendant No.2) died on 06.12.2000 and lastly Gurnam Singh(respondent-defendant No.4) also died on 19.04.2002. Despite bringing to the notice of the High Court about the death of the appellant and the two respondents, no steps were taken by anyone to bring their legal representatives on record to enable them to prosecute the lis involved in the appeal.

11) On 18.05.2010, the High Court allowed the second appeal, set aside the judgment/decree of the two Courts below and decreed the plaintiff's suit for specific performance of the contract against the defendants in relation to the suit land.

12) It is against this judgment of the High Court, the legal representatives of defendant No.2(Late Joginder Singh) and defendant No.4(Late Gurnam Singh) filed the present appeal by way of special leave petition and sought permission to question its legality and correctness.

13) Heard Mr. Basava Prabhu S. Patil, learned senior counsel for the appellants and Mr. Subhasish Bhowmick, learned counsel for the respondents.

14) The short question, which arises for consideration in this appeal, is wh

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2017 Supreme(SC) 423

SUPREME COURT OF INDIAR.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.Gurnam Singh(D) Thr. Lrs. & Ors. – Appellant(s)VERSUSGurbachan Kaur(D) By Lrs. & Ors. – Respondent(s) CIVIL APPEAL No. 5671 OF 2017 (ARISING OUT OF SLP (C) No.26798/2011) Decided On : 27-04-2017

Cases Referred (3)

SUPREME COURT OF INDIA
R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
Gurnam Singh(D) Thr. Lrs. & Ors. – Appellant(s)
VERSUS
Gurbachan Kaur(D) By Lrs. & Ors. – Respondent(s)
CIVIL APPEAL No. 5671 OF 2017 (ARISING OUT OF SLP (C) No.26798/2011)
Decided On : 27-04-2017