The main legal point established in the judgment is that a decree passed against a deceased person is generally a nullity, and the question of abatement must be decided by the same court where the deceased party was a necessary party to the case and their legal representatives were not brought on record.

D. P. Sood, J.—In this Regular Second Appeal under section 100, C. P. C. a preliminary legal question but substantial in nature for the determination of this Court is “whether on account of death of Jagdish Chand and non-impleading of his heirs within a period of limitation, resulted in abatement of whole or any part of the suit”?

2. The bone of contention in between the parties pertains to the land measuring 16 Kanals 14 Marlas comprised in Khewat-Khatoni No. 891 Min, 1436, Khasra Nos. 462, 503, 540, 466 and Khata Khatauni No. 891 Min 1438, Khasra No. 494 and Khatauni No1437 Khasra No. 447, Khasra Nos. 447, 453 and 454 as detailed in Jamabandi for the year 1979-80, situate in village Behdala, Tehsil and District Una Himachal Pradesh, (hereinafter referred to as the suit land).

3. Brahma Nand plaintiff is now respondent No. 1 in the instant appeal. He claimed to be a tenant under the landowners One of the landowners, namely, Jagdish Chand expired on 18th August 1987 There is no controversy over this fact in between the parties to the instant lis. The landowners were represented before the trial Court as also in the first appellate Court by Shri H L Chaudhry, Advocate. Admittedly no application for substitution of the legal representatives of late Sh Jagdish Chand arrayed as respondent No. 2 before the first appellate Court had been moved by Sh. Brahma Nand who was the appellant in the frist appeal. There is also no controversy in between the parties that arguments were heard on 9-8-1988 by the first appellate Court and the first" appeal was ultimately decided on August 22, 1988.

4. One of the grounds of appeal pertaining to the aforesaid preliminary substantial question of law so raised by Shri Kapil Dev appearing on behalf of the appellants that the impugned judgment passed by the learned District Judge is a nullity inasmuch as it has been passed against one of the dead landowners. It is well settled that ordinarily a decree passed against a dead person is a nullity except in those cases where the person died after the hearing of the arguments but before pronouncing of the judgment by the courts below. Another established principle is that the question whether the suit is abated in toto or in part, has also to S deeded by the same court where during the pendency of the appeal one of the parties had expired before hearing the arguments and where he being a necessary party to the lis, his legal representatives have not been brought on record.

5. Admittedly Jagdish Chand, one of the landowners, was a necessary party to the instant lis. Indisputedly, he having expired before the arguments were heard by the first appellate Court, the question whether suit has abated in toto or in part, is necessarily to be decided by the first appellate Court. Also the ultimate impact of his representation through Sh. H.L. Chaudhary Advocate through out the appeal till it was finally adjudicated upon, has also to be considered by that court, that is, the first appellate Court.

6. In that view of the matter, the appeal is liable to be accepted by setting aside the impugned judgment and decree dated August 22 1988 passed by the learned District Judge, Una, Himachal Pradesh. This legal proposition has not been controverted by the learned Counsel by the learned Counsel appearing on behalf of the respondents.

7. In view of the above discussion, the appeal is accepted, the impugned judgment and decree are set aside and the appeal is remanded for its fresh decision by the learned District Judge, Una, H. P. However, in that process, respondent No. I shall be at liberty to move an application for substitution of legal representatives of late Sh. Jagdish Chand respondent, before the said court subject to legal exceptions or objections whatsoever may be raised by the opposite party.

8. The parties are directed to appear before the learned District Judge, Una, on 11th December, 1991. Appeal allowed.