The automatic abatement of an appeal on the death of a party and the necessity of taking timely steps for substitution of legal representatives as per Order 22 Rule 3 and 4 of the Code of Civil Procedure.

Dharam Chand Chaudhary, J.

Respondent No.12 is duly served, however, there is no appearance on their behalf, hence proceeded against exparte.

2. In this appeal, an application registered as CMP No.8 of 2018 has been filed under Order 1 Rule 10 CPC for deletion of the name of respondent No.10, who has expired on 22.2.2013 i.e. during the pendency of the appeal in the lower appellate Court. The application is supported by death certificate Annexure A-1. The record available, at this stage, reveals that deceased respondent No.10 (defendant No.11 in the trial Court) has not only contested the suit but also the appeal in learned lower appellate Court. The appeal, however, came to be decided without taking note of her death and substitution of her legal representatives as well as deciding the question of abatement of the proceedings, if any.

3. As a matter of fact, on the death of respondent-defendant Sheela Devi and for want of requisite steps, the appeal before learned lower appellate Court stood abated automatically, however, only qua deceased respondent or as a whole, is a question which could have been considered and adjudicated by that very Court. Anyhow, the factum of death of deceased respondent Sheela Devi went unnoticed and learned lower appellate Court has decided the appeal without substitution of her legal representatives and deciding the question of abatement of the appeal. In view of the law laid down by this Court, as and when the question of abatement of the suit or appeal arises, the same can only be gone into and decided by the Court where the suit or appeal was pending at the time of death of a party. It has been held so by this Court in Jaswant Singh versus State of Himachal Pradesh and others, 2015(2) Shim.L.C. 674 while placing reliance on the ratio of the judgments rendered by Co-ordinate Benches of this Court in Jagan Nath and others v. Ishwari Devi, 1988(2) Shim.L.C. 273 and Karam Chand and others v. Bakshi Ram and others, 2002(1) Shim.L.C. 9.

4. On the death of a party to the suit or appeal and for want of consequential steps, suit/appeal abates because abatement is automatic after the expiry of the period prescribed for filing an application to set aside the same or substitution of legal representatives of deceased party. In the case in hand, respondent No. 10, Sheela Devi had expired on 22.2.2013 during the pendency of the appeal in the lower appellate Court. Whether the appeal in the lower appellate Court had abated as a whole or not is a question which could have been decided by learned lower appellate Court alone. The limitation prescribed for taking consequential steps and setting aside the abatement stands expired long back.

5. Not only this, but the apex Court in a recent judgment in (2017) 13 SCC 414, Gurnam Singh (dead) by legal representatives and others versus Gurbachan Kaur (dead) by legal representatives, has reiterated the legal principles already settled further by holding that a decision in favour and/or against a dead person renders such decision nullity. The Apex Court has went one step further by holding that the decree passed without taking note of a death of a party to the lis or deciding the question of abatement and substitution of legal representatives can be challenged at any time including at its execution stage. This judgment reads as follows :

(15) The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. The reasons are not far to seek.

(16) It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 Rules 3 and 4 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) for b