A decree passed in favor of or against a deceased person is a nullity, and the question of abatement must be decided by the same court where the party expired.

JUDGMENT :

Vivek Singh Thakur, J.

This Review Petition has been preferred against the judgment dated 20.6.2017 passed in RSA No. 419 of 2002 by learned Single Judge ofthis High Court, but as the said Bench is not available now, therefore, this matter has been listed before this Court.

2. During pendency of Review Petition, it came in the notice that respondent No. 1(b) Munu Ram who was appellant in RSA No. 419 of 2002 had expired on 14.9.2015, i.e. during pendency of RSA No. 419 of 2002, therefore, an application CMP No. 5680 of 2019 has been preferred by petitioner No. 1(a) who was respondent No. 1(a) in RSA No. 419 of 2002 for determining the question of abatement of RSA No. 419 of 2002.

3. Petitioners have filed CMP(M) No. 233 of 2019 for substitution of respondent No. 1(b) Munu Ram through his legal heirs.

4. It is also matter of record that appeal (RSA) was preferred by Phuyian during her life time in the year 2002 and she died on 6.7.2010 whereafter her legal heirs who were performa respondents in the appeal (RSA) were transposed as appellants No. 1(a) to 1(k), respectively vide order dated 10.6.2013 passed in CMP (M) No. 948 of 2013. Manu Ram was transposed as appellant No. 1(b).

5. Thereafter, Munu Ram expired on 14.9.2015, but he was neither deleted nor substituted through legal heirs. However, appeal (RSA)was allowed on 20.6.2017.

6. It is submitted by learned counsel for the parties that in view of judgment of the Supreme Court in Gurnam Singh (dead) through legal representatives and others Vs. Gurbachan Kaur (dead) by Legal representatives, reported in (2017) 13 SCC 414, the judgment is nullity because it was passed in favour of a dead person. Following paras of this judgment have been referred by them:-

“13. The short question, which arises for consideration in this appeal, is whether the impugned order allowing the plaintiff’s second appeal is legally sustainable in law? In other words, the question is whether the High Court had the jurisdiction to decide the second appeal when the appellant and 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record?

14. In a leading case of this Court in Kiran Singh & Others vs. Chaman Paswan & Others (AIR 1954 SC 340), the learned Judge Venkatarama Ayyar, J. speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature: (AIR p. 342, para 6)

“It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.”

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 nullity. The reasons are not far to seek.

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21. It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity” (See-N. Jayaram Reddy & Anr. Vs. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (19