Orders passed against deceased parties are nullities and require legal representation for validity.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Prasant Pallav, learned counsel for the petitioner, Mr. Vishal Kumar Tiwary, learned counsel for opposite party nos. 5 and 6 and Mr. Shresth Gautam along with Mr. Gaurav Kumar, learned counsel for opposite party no.8.

2. Office note suggests that notice upon opposite party no.3 has been received by sister-in-law, notice upon opposite party no.4 has been received by wife, notice upon opposite party no.7 is validly served. Thus, notices upon opposite party nos. 3, 4 and 7 are deemed to be validly served.

3. It has also been pointed out that opposite party nos.1 and 2 have left for their heavenly abode and I.A. No.6477 of 2023 has been filed for substitution of opposite party no.1 and for deletion of opposite party no.2.

4. Mr. Pallav, learned counsel for the petitioner submits that opposite party no.1, namely, Ashok Kumar Modi and opposite party no.2, namely, Parwati Devi died 2-3 years back, however, the petitioner was unaware of the death of opposite party nos. 1 and 2. He submits that in this petition, vide order dated 19.05.2023 notices were issued upon the opposite parties including opposite party nos. 1 and 2, who have left for their heavenly abode. He submits that it was not in the knowledge of the petitioner that opposite party nos. 1 and 2 have left for their heavenly abode. He submits that in view of that, substitution petition has been filed for substituting the legal heirs/successors of opposite party no.1, who are sons of Late Ashok Kumar Modi. He further submits that so far as opposite party no.2 is concerned, her sons are already on record as opposite party nos. 3 and 4. He submits that in view of that, this I.A. may kindly be allowed.

5. Mr. Tiwary, learned counsel for opposite party nos. 5 and 6 submits that Civil Miscellaneous Case being No.6 of 2018 was filed challenging the withdrawal of the suit and the learned Court has rejected the same and that is under challenge in this petition. He opposed the petition on the ground that the order has been passed against the dead persons on 11.11.2022 and in view of that, the said order has become a nullity. To buttress this argument, he relied upon the judgment passed by the Hon’ble Supreme Court in the case of Kishun @ Ram Kishun (Dead) through LRs. v. Behari (Dead) by LRs. (2005) 6 SCC 300 . He refers paragraph 6 of the said judgment, which reads as under:

“6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned senior counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside.”

Relying on the above judgment, he submits that the said order itself is a nullity.

6. Mr. Gautam, learned counsel for opposite party no.8 adopts the argument of Mr. Tiwary, learned counsel for opposite party nos. 5 and 6.

7. It is an admitted position that the suit was instituted for cancellation of the sale deed and that was withdrawn and, thereafter, the said civil miscellaneous case was filed by the petitioner on behalf of the original plaintiff no.2 alleging that the compromise is forged one and the same is obtained by fraud, however, the learned Court has passed the order against the dead persons. If such a situation is there, the Court finds force in the argument of Mr. Tiwary, learned counsel for opposite party nos. 5 and 6 that the order is pass