##PAGE1##

1 Neutral Citation No. ( 2025:HHC:44790 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO (ORD) No.74 of 2025

Decided on: 20.12.2025

Jagdish Chand & others

…..Appellants

Versus

Lachhmi Devi and others

f .…Respondents

___________________________________o____________________

Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge

1 Whether approved for reporting?

For the appellants: Mr. uLovneeesh Kanwar, Senior Advocate

with Mr. Tek Chand, Advocate.

For the respondents: Ms. Manjeet Kaur, Advocate, vice

Mr.Naveen K. Bhardwaj, Advocate, for

respondent No.1.

h None for respondents No.2 to 5, 7 to 15 &

17 to 19(i) to 1((iv).

Proposed LRs No.6(a),6(b) & 16(a) to 16(c)

already ex-parte.

____________________________________________________

Sushil Kukreja, Judge (oral)

The instant appeal has been preferred by the appellants/

defendants against the judgment dated 10.12.2024, passed by the

learned Additional District Judge, Sarkaghat, District Mandi, HP, in

Civil Appeal No.17 of 2021, whereby the judgment and decree dated

25.07.2018, passed by the learned Senior Civil Judge, Court

1 Whether reporters of Local Papers may be allowed to see the judgment?

::: Downloaded on - 04/01/2026 03:18:20 :::CIS

2 Neutral Citation No. ( 2025:HHC:44790 )

No.1, Sarkaghat, District Mandi, HP, in Civil Suit No.176 of 2010, was

set-aside and the matter was remanded back for fresh trial.

2. During pendency of the present appeal, the. appellants

have filed two applications, being CMP(M)s No.1458 & 1459 of 2025,

for bringing on record the legal heirs of respondents No.6 and 16,

after condoning the delay. Perusal of thoe aforesaid applications

reveals that respondent No.6-Bakshi , had died on 22.06.2024 and

respondent No.16-Rattan hadr died on 02.12.2023, during the

pendency of the appeal before the learned First Appellate Court.

However, the learned First Appellate Court had passed the

impugned judgmCent on 10.12.2024. Therefore, the impugned

judgment admittedly is against the dead persons, i.e., respondents

No.6 and 16. There is no quarrel so as to the fact that respondents

No.6 and 16 have expired well before the decision in the appeal by

the learned First Appellate Court. No doubt, applications, i.e.

CMPs(M) No.1458 & 1459 of 2025, for bringing on record the legal

heirs of respondents No.6 & 16, after condoning the delay, have been

filed in the present appeal, however, the question of substitution of

their legal heirs and the question as to whether the appeal on their

death stands abated, for want of consequential steps, are the

::: Downloaded on - 04/01/2026 03:18:20 :::CIS

3 Neutral Citation No. ( 2025:HHC:44790 )

questions to be gone into and determined by the learned First

Appellate Court below

3. It is settled proposition of law that where a par.ty 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 oonly be considered by the

Court, before whom the suit/appeal wa s 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 theC 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