JUDGMENT :

Subhendu Samanta, J.

1. A very short legal point is involved in the instant revision- as to whether order passed ex-parte against a dead person, which was sought to be set aside by the legal heirs of the dead person under Order 9, Rule 13 CPC can be rejected.

2. One Banshidhari Agarwal inducted present OP No. 2 as a tenant in the premises in question. OP No. 2 occupied the premises along with her relatives Banshidhari Agarwal instituted a suit for ejectment and consequential prayers before the learned Civil Judge, (junior Division) Darjeeling being OC Suit No. 15 of 1997. The suit was contested by the OP No. 2. During pendency of the said suit Banshidhari Agarwal expired his legal heirs gifted the suit premises in favour of one Ajay Kr. Agarwal. The suit was decreed. Ajay Kr. Agarwal initiated an execution proceeding. Present OP No. 1 (one relative of OP 2) filed a suit being OC suit No. 3 of 2013 before the learned civil Judge (Senior Division) at Kalimpong State. OC Suit No. 3 of 2013 was dismissed as not maintainable.

3. OP No. 1 filed an application under Order 21 Rule 99/100/101 of the Code of Civil Procedure 1908, before the Learned Civil Judge (Senior Division) Kalimpong which was registered as Misc Case No. 1 of 2017. Misc Case No. 1 of 2017 was dismissed on contest OP No. 1 preferred an appeal before Learned District and Sessions Judge, Kalimpong, who was registered as misc appeal 1 of 2019.

4. Ajay Kumar Agarwal appeared as a respondent in the said appeal. During the pendency of the said appeal Ajay Kr. Agarwal died at Mumbai on 5th October 2022. On 14th October respondent i.e. deceased Ajay Kr. Agarwal did not appear before the learned Appellate Court, in absence of the deceased respondent the learned Additional District Judge disposed of the appeal by passing the impugned Judgment dated 30st October, 2022. One application was filed for setting aside the Ex- parte order passed in the misc appeal under Order 9 Rule 13 CPC. The Additional District Judge, denied to entertain the said application on the ground that the order and judgment passed in misc appeal 1 of 2021 was delivered by the court on merit.

5. Being aggrieved by the order passed by Learned Additional District Judge, the instant C.O has been preferred.

6. Learned Counsel for the petitioner submits that the impugned judgment dated 30.10.2022 as well 01.02.2024 is nullity. An order passed against a dead person cannot be entertained by any forum. He cited a decision of Hon’ble Apex Court passed in Kavarampeta Venkataiah and Ors reported in 2021 SCC Online SC 113

“The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the law treats such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be mollified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits, or because of incorrect