An order against a deceased person is a nullity, and legal representatives must substitute the deceased to pursue appeals.

ORDER :

1. By way of present writ petition, the petitioners (legal representatives of the deceased Mahendra Singh) have challenged the order dated 14.09.2023 passed by the learned Board of Revenue, Ajmer (hereinafter referred to as ‘the Board’), whereby the appeal filed by their prepositus Mahendra Singh was rejected.

2. Mr. Sushil Bishnoi, learned counsel for the respondents at the outset raised an objection that Mahendra Singh, who was the sole appellant before the Board had passed away during the pendency of the appeal on 27.08.2020, whereafter, his legal representatives neither informed the Board about his demise nor had they taken up any proceedings for their substitution and thus, the appeal pending before the Board had abated on 26.11.2000 on expiry of 90 days from the death of the appellant of the appeal pending before the Board.

3. Mr. B.S. Sandhu, learned counsel for the petitioners at this juncture submitted that so far as present writ petition is concerned, the same has been filed by the legal representatives of Mahendra Singh and since they were not aware of pending proceedings before the Board, they could not move application for their substitution. It was nevertheless contended that the appeal, which has been decided on 14.09.2023 against Mahendra Singh, who had since passed away, though decided on merit is a nullity and the matter deserves to be remanded back to the Board for deciding the same afresh.

4. Learned counsel for the respondents, however, submitted that if the relief prayed by the petitioners is allowed, then, it will lead to failure of justice, because the legal representative(s) of the litigant would intentionally not move the application for his/her/their substitution and later on, once the order passed by the court concerned is against him/her/them, they will challenge the same on the count of death and pray that the order be set aside.

5. Mr. Bishnoi cited the judgment of Hon’ble the Supreme Court in the case of Amba Bai & Ors. vs. Gopal & Ors., reported in (2001) 5 SCC 570 to buttress his argument that the appeal before the Board had abated and the order passed by the Revenue Appellate Authority on 18.09.2008 has attained finality. He reiterated that the order passed by the Board on 14.09.2023 being a nullity deserves to be ignored and the order passed by the Revenue Appellate Authority is required to be given effect to.

6. Learned counsel for the respondents also relied upon the recent judgment of Hon’ble the Supreme Court in the case of Om Prakash Gupta @ Lalloowa (Now deceased) & Ors. vs. Satish Chandra (Now deceased) : Civil Appeal No. 13407/2024 decided on 11.02.2025 and submitted that the proper course for the petitioners is to move an application for recalling of the order, as has been held by Hon’ble the Supreme Court.

7. He further submitted that on expiry of the limitation period for moving an application for substitution of the appellant, the appeal stood abated and therefore, the impugned order of the Board is a nullity and liable to be ignored and consequently the order of the Revenue Appellate Authority dated 18.09.2008, which was in favour of the present respondents has attained finality. He argued that the petitioners cannot therefore challenge the order of the Board on merit.

8. Distinguishing the above referred judgment rendered in the case of Amba Bai (supra), learned counsel for the petitioners pointed that the proceedings before Hon’ble the Supreme Court arose out of the execution proceedings and no appeal had been preferred against the order of second appellate court, whereas, in the present case the petitioners have preferred the present writ petition under Article 227 of the Constitution of India, being only remedy available, since no further appeal has been provided against the order of the Board.

9. Heard learned counsel for the parties and considered the judgments cited.

10. The facts in the present case are not disputed including the fact that the petitioners being legal repre