Proceedings for bringing on record the legal representatives of a deceased party must be initiated in the Court where the lis was pending at the time of the death of the party.

Rajiv Sharma, Judge:

1. This Regular Second Appeal is directed against the judgment and decree dated 12.01.2011, passed by the learned District Judge, Kullu, H.P. in Civil Appeal No. 84 of 1998/35 of 2010.

2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake), had instituted a suit for permanent prohibitory injunction in the Court of learned Senior Sub Judge, Lahaul & Spiti at Kullu, Exercising the Powers of Sub Judge, Ist Class, Kullu. Learned Senior Sub Judge, Lahaul & Spiti at Kullu dismissed the suit on 03.08.1998. Plaintiff preferred an appeal before the learned District Judge, Kullu. The same was accepted by the learned District Jude, Kullu and the findings of the learned trial Court were reversed. The decree of permanent prohibitory injunction was passed against the appellants-defendants (hereinafter referred to as “the defendants” for brevity sake) restraining them, their successor, agents and servants from interfering in the peaceful possession of the plaintiffs over the suit land in any manner. Hence, this Regular Second Appeal by the defendants.

3. The appellants-defendants moved an application bearing C.M.P.(M) No. 586 of 2011 for bringing on record the L.Rs./legal representatives of respondent No. 5, Suraj Prakash, who has died on 26th January, 1995 during the pendency of case before the trial Court.

4. Mr. Ajay Kumar, learned counsel for the appellants has vehemently argued that the judgments and decrees passed by both the Courts below against a dead person are nullity.

5. Mr. Bhupender Gupta, learned Senior Advocate for respondents No. 1, 2, 4 and 6 has supported the judgments and decrees passed by both the Courts below

6. The learned Single Judge of this High Court in Sher Singh and others Vs. Raghu Ram and others, 1981 S.L.C. 25 has held that an application for setting aside the abatement and substituting heirs of deceased defendant should have been made and dealt with by the trial court in which the abatement occurred. The learned Single Judge has held as under:

“On the facts narrated above and which are not in dispute, I find that the learned Additional District Judge had no jurisdiction to entertain or dispose of the plaintiffs application under order 22, rules 4 and 9 of the Code and the the impugned order is liable to be quashed as a whole on this short ground alone. The proceedings under order 22, whether these be for bringing on record the legal representatives of a deceased party or for setting aside the abatement, must, in my view, be initiated in the Court where the lis was pending at the time of the death of the party and such Court along has the jurisdiction to entertain such proceedings. The reason is obvious and is not far off to seek. It is only when a party to a lis or appeal dies be, that the necessity of substituting the legal representatives of such deceased party can arise and an application under order 22, rules 3, 4 or 9, as the case may be would lie. In case the death occurs prior to the institution or after the disposal of such a list, no question would arise for bringing on record the legal representatives of the deceased, inasmuch as the legal representatives are to be impleaded on the record of a pending lis only. The only exception to this can be conceived where proceedings under order 22 are initiated in the appellate Court in respect of an appeal against a judgment to which the provisions of order 22, rule 6 can be attracted. It, therefore, follows that if a party was already dead on the commencement of the lis, the provisions of order 22 would not be attracted except in the case where the provisions of order 22, rule 6 are applicable.

7. Similar view has been taken by the learned Single Judge in Ram Rakha and others Vs. Brahma Nand and others, 1994 (Supp.) S.L.C. 29. The Learned Single Judge has held as under:

“One of the grounds of appeal pertain