Orders against deceased parties are nullities; proper substitution of legal heirs is essential in ongoing litigation.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.1.

2. Notice upon the opposite party Nos.2 to 5 has been effected, however, they have chosen not to appear before the Court and on 24.03.2025 with a view to provide one more opportunity to them the matter was adjourned and in spite of that they have not appeared, as such this petition is being heard in absence of opposite party Nos.2 to 5.

3. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 28.07.2023 passed by learned Civil Judge (Senior Division)-II-cum-LA Judge, Ranchi in MCA No.219 of 2023 arising out of Misc. Case No.126 of 2018 whereby the learned Court has been pleased to allow the same petition dated 24.02.2023 under Order 6 Rule 17 of CPC.

4. Mr. Dilip Kr. Prasad, learned counsel appearing for the petitioner submits that the Title Suit No.317 of 2007 was dismissed for default by order dated 31.08.2018. He submits that thereafter petition under Order IX Rule 4 of CPC was filed for restoration of Original Suit No.317 of 2007 and opposite party No.6 has already died and in spite of that opposite party No.6 was made party in MCA No.219 of 2023, however, the legal heirs/successors have already been substituted in the original suit itself and in spite of that against the dead person the restoration petition has been filed. He submits in that petition, the petition under Order 1 Rule 10 of CPC has been filed which has been allowed by the learned Court. He submits in view of that the learned Court has wrongly passed the order. He further submits that earlier one petition has been filed which has already been withdrawn by order dated 27.02.2023 in MCA No.173 of 2023. On this ground, he submits that this petition may kindly be allowed.

5. Learned counsel appearing for the opposite party No.1 opposes the prayer and submits that the learned Court has only allowed the substitution of legal heirs/successors of opposite party No.6 and the legal heirs/successors has already been substituted in the original suit, as such there is no illegality in the impugned order. He further submits that the substitution was made in MCA No.173 of 2023 under Order 22 Rule 4 of CPC and in view of that the petition was withdrawn and that was a petition arising out of a Miscellaneous Case No.126 of 2018 and in view of that the petition has been withdrawn.

6. In view of above submission of learned counsel appearing for the parties, the Court has gone through the materials on record. It transpires that it is an admitted position that in original suit legal heirs/successors of opposite party No.6 has already been substituted, however, in the meantime the said suit was dismissed for default by order dated 31.08.2018 pursuant to that the petition was filed being MCA No.173 of 2023 under Order XXII Rule 4 which was withdrawn by order dated 27.02.2023 in view of fact that in the miscellaneous case the said petition has been filed and thereafter the restoration petition was filed to restore the dismissed suit under Order IX Rule 4 of CPC in which it was transpired that wrongly the opposite party No.6 has been made opposite party although he was already left for his heavenly abode and the legal heirs/successors of opposite party No.6 has already been substituted in the original suit and the learned Court has allowed the said petition.

7. It is well settled that against the dead persons passing of impugned order are deemed to be nullity further substitution of opposite party No.6 was already made in the original suit and in that background, the learned Court has allowed the said petition. There is no illegality in the impugned order, as such this petition is dismissed.