IMPORTANT POINT
A decree against a deceased party is void; without proper substitution during appeal, the case is deemed closed.

ORDER

Heard on the question of admission.

2. This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 19.12.2008 passed by I Additional Judge to the Court of I Additional District Judge, Shivpuri in MJC No.28- A/2008 by which an application filed under Section 5 of Limitation Act was rejected and as a consequence thereof, civil appeal filed by appellants against judgment and decree dated 22.08.2005 passed by Civil Judge, Class II, Kolaras, District Shivpuri in Civil Suit No.113A/2004 was dismissed as barred by time.

3 . It is submitted by counsel for appellants that somebody has informed that appellant No.1 has expired. However, it is fairly conceded by Shri Anmol Khedkar that appellant No.2 is the son of appellant No.1 and he is already on record.

4. Accordingly, name of appellant No.1 is permitted to be deleted from the array of cause title.

5. This is a shocking case where counsel for appellants was not ready to understand the legal provisions of law in spite of various efforts made by this Court. On the contrary, when the Court was trying to suggest the counsel for appellants to read out the provisions of Order 22 Rule 6 of CPC, still counsel for appellants was not ready to look into the suggestion which was being given by this Court.

6. Be that whatever it may be.

7. Since counsel for appellants was adamant in not listening to the Court, therefore, with heavy heart, this Court was left with no other option but to stick to the argument which was advanced by counsel for appellants.

8. Kisna had filed a civil suit which was dismissed by Trial Court by judgment and decree dated 22.08.2005 passed in RCSA No.113-A/2004. It appears that appellants filed Civil Appeal under Section 96 of CPC alongwith an application under Section 5 of Limitation Act. In the application filed under Section 5 of Limitation Act, it was mentioned by appellants that plaintiff/Kisna had expired on 23.04.2005 and since Kisna was looking after the Court case, therefore, appeal could not be filed within a period of limitation. Application filed by appellants under Section 5 of Limitation Act was rejected by Appellate Court and accordingly, appeal was also dismissed as barred by time.

9. In the impugned order, it was mentioned by Appellate Court that Kisna had expired on 23.04.2005 but by that time, trial was already fixed for final arguments and it was obligatory on the part of legal representatives of Kisna to get themselves substituted in his place and since same has not been done, therefore, they would not get the benefit of abatement of suit.

10. According to this Court, aforesaid findings given by Appellate Court were contrary to law and accordingly, this Court tried to draw the attention of counsel for appellants to develop his arguments on the basis of provisions of Order 22 Rule 6 of CPC. It is not the case where death of plaintiff took place after the case was finally heard and was fixed for delivery of judgment. It is the case where plaintiff has expired prior to final hearing of the case, therefore, in fact suit had abated.

11. The Supreme Court in the case of Gurnam Singh (Dead) Through Legal Representatives and others Vs. Gurbachan Kaur (Dead) by Legal Representatives reported in (2017) 13 SCC 414 read as under:-

"9. During the pendency of the second appeal, Gurbachan Kaur, appellant (plaintiff) died on 10.05.1994. Likewise, Joginder Singh (respondent-Defendant 2) died on 6-12-2000 and lastly, Gurnam Singh (respondent-Defendant 4) also died on 19-4-2002. Despite bringing to the notice of the High Court about the death of the appellant and the two respondents, no steps were taken by anyone to bring their legal representatives on record to enable them to prosecute the lis involved in the appeal.

10. On 18-5-2010, the High Court allowed the second appeal, set aside the judgment/decree of the two courts below and decr