IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 330 of 2022 Decided on: 16.11.2023 Bimla Devi & Ors. …..Appellants Versus Vidya Devi & Ors. .…Respondents __________________________________ __________________

Coram f The Hon'ble Mr. Justice Sushil Kukreja, Judge.

1 Whether approved for reporting?

For the appellants: tMr. Prem Verma, Mr. Varun rThakur and Mr. Aakash Thakur, uAdvocates.

For the responodents: Mr. R.L. Chaudhary, Advocate, for respondents No. 1, 3 and 4.

____________________________________________________

Sushil Kukreja, Judge (oral)

By way of instant appeal, the appellants, who were the plaintiffs before the learned trial Court, had laid challenge to H the judgment and decree, dated 05.08.2022, passed by learned Additional District Judge, Hamirpur, District Hamirpur, H.P., in Civil Appeal No. 45/2019, whereby the appeal filed by the plaintiffs/ appellants, was dismissed and judgment and decree passed by the learned trial Court was upheld.

2. The perusal of the record reveals that respondent No. 2, Bakshi Ram, has passed away on 25.06.2022, i.e. during Whether reporters of Local Papers may be allowed to see the judgment? yes the pendency of the appeal in the first Appellate Court, whereas, the impugned judgment and decree was passed by the learned lower Appellate Court on 05.08.2022. The appeal, therefore, has been dismissed by the learned first Appellate Court .without taking note of his death, vide judgment and decree impugned before this Court in the present appeal. The impugned judgment, therefore, admittedly is against a dead person, i.e., respondent No. 2, Bakshi Ram. There is no quarre l so as to the fact that respondent No. 2 has expired well brefore the decision in the appeal by the learned first Appellate Court. No doubt, applications, i.e. CMPs(M) No. 832 and 833 of 2023, for bringing on record the legal representatives of respondent No. 2, Bakshi Ram, after condoning the delay in filing the application, have been filed in the present appeal, however, whether the appeal on his death stands abated, for want of consequential steps, is a question 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 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 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