IMPORTANT POINT
Substitution and abatement – Where a party dies in a pending suit/appeal and judgment/decree is passed in ignorance to such death, question of substitution of his/her legal heirs and setting aside abatement, can only be considered by Court before whom suit/appeal was pending at that time.

JUDGMENT (ORAL)

Sushil Kukreja, J.—By way of instant appeal, the appellants, had laid challenge to the judgment and decree, dated 31.12.2022, passed by learned Additional District Judge Sundernagar, District Mandi, H.P., in Civil Appeal No. 95/2015, whereby the appeal filed by defendants, was dismissed and judgment and decree passed by the learned trial Court was affirmed.

2. The perusal of the record reveals that respondent No. 8 Geeta Devi has expired on 25.09.2017, whereas, the impugned judgment and decree was passed by the learned first Appellate Court on 31.12.2022. However, the appeal has been dismissed by the learned first Appellate Court without taking note of her death, vide judgment and decree impugned before this Court in the present appeal. The impugned judgment therefore, admittedly is against the dead person, i.e., respondent No. 8. There is no quarrel so as to the fact that respondent No. 8 has expired well before the decision in the appeal by the learned first Appellate Court. No doubt, applications, i.e. CMPs(M) No. 955 & of 956 of 2023, for bringing on record the legal heirs of respondent No. 8 after condoning the delay, have been filed in the present rt appeal, however, the question of substitution of her legal heirs and the question as to whether the appeal on her death stands abated, for want of consequential steps, are the questions to be gone into and determined by learned first Appellate Court.

3. It is settled proposition of law that where a party dies in a pending suit/appeal and judgment/decree is passed in ignorance to such death, the question of substitution of his/her legal heirs and setting aside the abatement, if any, can only be considered by the Court, before whom the suit/appeal was pending at that time.

4. In Jagan Nath and others versus Smt. Ishwari Devi, 1988 (2) Shimla Law Cases 273, it has been held that the question of substitution of legal representatives of a deceased party and the abatement of the suit/appeal for want of consequential steps has to be decided by that very Court where at the time of death of such party, the lis was pending. Paragraph 6 of the aforesaid judgment reads as under:—

“6. The fact that one of the several defendant-appellants against whom an indivisible decree was passed by the trial Court, had died during the pendency of the appeal before the lower appellate court, and steps to bring his legal representatives on the record of the appeal had not been taken within the prescribed period, being undisputed, it of must be held that the appeal had already abated prior to the decision of the lower appellate court dated April 9, 1987. The decree of the lower appellate court was thus a nullity as it had been rt passed also against a dead person. The legal position is not in dispute. What is the course which should normally be adopted in a situation like this, has been succinctly stated in the decision of the Calcutta High Court in Kanailal’s case (supra). It was observed by the Division Bench, after noticing the decisions of various High Courts and the Supreme Court, that:

..... In such circumstances, in our opinion the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely, he ineffective decree passed by the court of appeal below should be set aside and the appeal should be remanded to the said court, keeping it open to the appellants to move the said court for an opportunity to have the abatement set aside if the appellants could satisfy the said court that they are so entitled in law............

I am in entire agreement with the aforesaid observations.”

5. Further in Karam Chand and others versus Bakshi Ram and others, 2002 (1) Shimla Law Cases 9, it has again been held that as and when the questions with respect to substitution of legal heirs of deceased party and abatement of the suit or appeal for want of consequential steps, arise in relation to a suit or appeal, these are to be decided by the Court in w