A decree against a deceased party is void; however, the legal heirs have the discretion to treat it as valid or challenge it, as reaffirmed by the court.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 28.03.2023 passed by learned Principal District Judge, Godda in Civil Misc. Appeal No.01 of 2018 whereby the said appeal was allowed and the ex-parte judgment and decree passed by the learned Court in Title Suit No.23 of 2010 has been recalled and direction has been issued to implead the opposite parties as party in Title (P) Suit No.23 of 2010 and after giving proper opportunity to both the sides pass judgment in accordance with law.

3. Mr. Pankaj Kr. Choudhary, learned counsel appearing for the petitioners submits that Title Partition Suit No.23 of 2010 was instituted for partition of the land in question and defendant No.1 was Amin Kapri. He submits that he has appeared before the learned Court and filed the documents and all of a sudden, he has amended the suit and thereafter the suit was decided by the judgment dated 07.07.2015. He submits that thereafter a petition under Order 9 Rule 13 was filed by the legal heirs/successors of Amin Kapri, who has left for his heavenly abode on 10.07.2013 to recall the judgment and decree and to implead them as a party, however the learned Court has been pleased to reject the same by order dated 17.07.2018 which was challenged in civil miscellaneous appeal which was decided by learned appellate court by order dated 28.03.2023 by which the ex-parte judgment has been set aside and the said suit has been restored and the direction has been issued to implead legal heirs/successors of defendant No.1 and after providing opportunity to decide the suit afresh. He submits that the defendant No.1 has left the suit and has not taken any proper steps and in view of that the said order passed by the learned appellate court is not in accordance with law.

4. Learned counsel appearing for the opposite party Nos.1 and 2 submits that they are the legal heirs/successors of Amin Kapri, who has left for his heavenly abode and in view of that the said petition was filed under Order 9 Rule 13 and learned trial court has wrongly rejected, however, the learned appellate court has allowed the same considering that they are the necessary party.

5. If a legal representative adopts that alternative course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. A reference may be made to the judgment passed in the case of Kavarampeta Venkataiah and others v. Gayatri Educational Society and others , reported in (2023) 12 SCC 555, wherein, paragraph 6 of the judgment passed in the case of N. Jayaram Reddy v. LAO , reported in (1979) 3 SCC 578 was considered by the Hon’ble Supreme Court. Paragraph 8 of the judgment passed in the case of Kavarampeta Venkataiah and others (supra) reads as under:

“8. Reliance was placed on the decision of this Court in N. Jayaram Reddy v. LAO , to submit that if an order was passed against a dead person, the representatives of such deceased person could either treat the order or decree to be a nullity or choose to challenge the order on merits. The relevant observations of this