Legal representatives must be substituted in place of deceased parties in ongoing litigation; abatement occurs if not done within stipulated time, especially in trust matters.

1. Both these appeals are fled by respective appellants against the impugned judgments and orders dated 09/02/2021 passed by the learned District Judge-5, Dhule (hereinafter referred to as 'the learned District Judge) in Miscellaneous Civil (Trust) Application No.108 of 2010 and Miscellaneous Civil (Trust) Application No.124 of 2010. Since in both these applications the learned District Judge after allowing those applications, has set aside order of the Assistant Charity Commissioner, Dhule in Change Report No. 643 of 2007 and order of Joint Charity Commissioner, Nashik Region, Nashik Appeal No. 26 of 2009, I fnd it appropriate to decide these appeals commonly.

2. It appears that the learned Assistant Charity Commissioner, Dhule had accepted the Change Report No. 643 of 2007 based on the meeting dated 08/04/2007, wherein body of the trust known as 'Mahatma Jyotiba Phule Gramin Shikshan Mandal, Nyahold, District Dhule' got changed. The Joint Charity Commissioner had also upheld the fnding of the learned Assistant Charity Commissioner. However, the learned District Judge in the aforesaid applications vide impugned judgments and orders, has set aside aforesaid change report alongwith the order of the learned Joint Charity Commissioner, Nashik. Hence, these appeals.

3. The respective learned counsel and senior counsel for the contesting parties argued on merits. However, on perusal of the appeal memo, it appears that the main ground for challenging the impugned judgments and orders is that whether order passed in favour of dead persons and also against dead respondents by the learned District Judge is just, legal and proper.

4. On this aspect, the learned counsel Mr. Mukul Kulkarni submits that in the present matters during the pendency of applications before the learned District Judge, the appellant Shri Shri Shamrao Gobji Mali passed away on 02/07/2012. Similarly Shri Arvind Shamrao Pawar also passed away on 10/02/2016 and Shri Ramkrushna Shivnarayan Upadhye, the elected president of the trust under the aforesaid change report, expired on 08/02/2018. As such, he submitted that on the death of parties, the proceeding stood abated. However, without bringing the legal heirs of the aforesaid deceased persons, the learned District Judge went on with the applications and decided the same despite having noticed that the aforesaid persons had died during pendency of the proceedings before him. The learned counsel Mr. Mukul Kulkarni heavily placed reliance on the judgment of the Hon'ble Apex Court in Gurnam Singh (d) thr. L.Rs. and others vs. Gurbachan Kaur (D) by L.Rs., reported in MANU/SC/0533/2017, wherein following observations are made :

"16.The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. The reasons are not far to seek.

17. It is not in dispute that the Appellant and the two Respondents expired during the pendency of the second appeal. it is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to fle an application Under Order 22 Rules 3 and 4 of the Code of Civil Procedure , 1908 (for short, 'the Code') for bringing their names on record in place of the dead persons to enable them to continue the lis.

18. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the p