An appeal filed against a deceased sole defendant is a nullity; proper procedure requires withdrawal of the appeal with liberty to file a fresh one involving the legal heirs.

JUDGMENT :

AMITABH KUMAR RAI, J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. The instant writ petition has been filed challenging the order dated 10.12.2025 passed by District Judge, Gonda in Civil Appeal No.54 of 2024, Smt. Johra Begam @ Johra Khatoon vs. Ishhaq Ali , filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), whereby the substitution application filed by the petitioner under Order XXII Rule 4 of C.P.C. along with the application for condonation of delay was rejected and the appeal was also dismissed, holding it to be abated due to the death of the sole respondent.

3. The facts relevant for the purpose of disposal of the present petition are that the petitioner, on the death of her father, Late Jumai, on 08.04.2008, came into possession of the land in question being the successor and the relevant entries in the revenue records were entered, bringing on record the petitioner as tenure holder of the agricultural land and the other properties.

4. It has been submitted by the counsel for the petitioner that the mother of the petitioner also died on 08.03.2008, one month prior to the death of her father. However, one Ishhaq Ali, having no succession right over the property in question, on the basis of a fraudulent will deed, claimed titled right of the agricultural land mentioned in the will deed. The petitioner, on coming to know of the fraudulent will deed dated 20.01.2006, filed suit for cancellation of the will deed along with relief for permanent injunction before the Civil Judge (Junior Division), Gonda on 26.05.2008. The suit was decreed ex parte vide judgment and order dated 18.07.2011, and the will deed dated 26.05.2008 was cancelled. Against the order dated 18.07.2011, Ishhaq Ali filed an application for restoration on 23.08.2011, which was allowed vide order dated 13.03.2014, and the ex parte judgment and order dated 23.08.2011 was recalled. Ultimately, the suit filed by the petitioner was dismissed vide exparte judgment and order dated 22.11.2024. Feeling aggrieved, the petitioner filed Civil Appeal No.54 of 2024 on 18.12.2024, impleading Ishhaq Ali as the sole respondent in the appeal.

5. It is the case of the petitioner that she was not aware of the fact that Ishhaq Ali by that time had died on 10.07.2023, and in ignorance, she filed the appeal against the dead person. However, when she came to know about the death of Late Ishhaq Ali, she filed an application for substitution along with an application for condonation of delay under Order XXII Rule 4 C.P.C. for impleading the legal heirs of the deceased, Ishhaq Ali. It seems that notices were issued on the application for substitution and for condonation of delay and the legal heirs of the deceased Ishhaq Ali filed objections to both the applications. The Court, after taking into consideration the objections, rejected the application for condonation of delay, consequentially rejecting the substitution application vide impugned judgment and order dated 10.12.2025 and closed the proceedings of the appeal holding it to be abated.

6. Learned counsel for the petitioner has argued that the Court of District Judge, Gonda, has wrongly rejected the application for condonation of delay in filing the substitution application, in as much as the petitioner was not aware of the death of Late Ishhaq Ali at the time of filing of the appeal and as soon as the petitioner, co