A decree passed against a deceased party is null and void; proper procedure under Order 22 CPC must be followed to avoid automatic abatement.

JUDGMENT :

Virender Singh, J.

CMP No. 7049 of 2023

1. The order of mine shall dispose of the application, filed by the appellants, under Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), wherein, a prayer has been made to take the factum of death of respondent No. 38-Jarbu, on record and to set aside the judgment and decree, passed by the learned Court below, being passed against a dead person.

2. The brief facts, leading to the filing of the present application, before this Court, may be summed up, as under: 2.1. The appellants have preferred the Regular Second Appeal, before this Court, against the judgment and decree, dated 29th June, 2019, passed by the Court of learned Additional District Judge-1, Mandi, District Mandi, H.P. (hereinafter referred to as ‘the First Appellate Court’), in Civil Appeal No. 42/2013, titled as Joginder and others versus Lohari Devi and others, whereby the appeal preferred by the appellants has been dismissed.

2.2. The said appeal had been filed against the judgment and decree, dated 19th June, 2013, passed by the Court of learned Civil Judge (Junior Division), Karsog, District Mandi, Himachal Pradesh (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 31 of 2010, titled as Lohari Devi and others versus Joginder and others, whereby the suit filed by the plaintiffs has been decreed and the defendants have been restrained from interfering with the suit land comprised in Khasra No. 272, in any manner, whatsoever, whereas, counter claim of the defendants has been dismissed.

2.3. According to the stand taken by the appellants/ applicants, when notices of the instant appeal were issued to the respondents, the report was made on the summons issued against respondent No. 38-Jarbu, that the said respondent has expired. Thereafter, the appellants-applicants have obtained the death certificate of respondent No. 38-Jarbu, according to which, said respondent No. 38- Jarbu has expired on 1st October, 2014, when, the matter was pending before the learned First Appellate Court.

3. On the basis of the above facts, a prayer has been made that the question of abatement, on account of death of respondent No. 38-Jarbu, is required to be determined by the learned First Appellate Court, as, at the time of death of respondent No. 38-Jarbu, the matter was pending before the learned First Appellate Court. Hence, the appellants/ applicants have prayed that the matter be remitted back to the learned First Appellate Court, with a direction to decide the question of abatement, on account of death of respondent No. 38-Jarbu.

4. When put to notice, this application has been contested, on the ground that despite death of respondent No. 38- Jarbu, no application for substitution of his legal representatives has been filed, although this fact came to the notice of the appellants/applicants on 23rd December, 2019. However, a composite application, being CMP No. 323 of 2022, was filed, which was dismissed as withdrawn.

4.1. According to the respondents/non-applicants, although, the appellants/applicants have obtained the death certificate of respondent No. 38-Jarbu on 3rd December, 2021, however, despite this fact, they have not moved any application, for bringing on record his legal representatives.

4.2. Opposing the prayer of the appellants/applicants, to remit the matter back to the learned First Appellate Court, it is the stand of the respondents/non-applicants that respondent No. 38-Jarbu was impleaded as defendant No. 22, in the suit and he remained ex parte, as, he has not chosen to contest the suit before the learned trial Court. No relief, whatsoever, is stated to have been claimed against him. According to the respondents/non-applicants, in the first appeal, said Jarbu wtas impleaded as proforma respondent No. 38, and in the said proceedings also, he remained ex parte. The appellants/applicants are also stated to be negligent in not making an appropriate application on the death of respon