A decree against a deceased party is null and void; proper legal procedures must be followed for due process.

ORAL JUDGMENT

1.Heard.

2. Admit.

3. The present Appeal Against Order (AO) is filed being aggrieved by the judgment passed by learned District Judge-8, Nagpur in Reg. Civil Appeal No. 26/2014 on 06/04/2017, by which judgment, the learned Appellate Court partly allowed the appeal and set aside the judgment and decree passed by the learned Joint Civil Judge, Senior Division, Nagpur in Reg. Civil Suit No. 723/1997 on 29/11/2013 and remanded the case to the learned Trial Court to decide afresh. The learned Appellate Court remanded the matter even on the count that the issues were not properly framed and therefore, it was directed to the learned Trial Court to frame fresh issues in view of the observations made in the Appellate Court’s judgment.

4. The learned counsel for the appellants has filed affidavit on record wherein he brought to the notice that respondent no. 4 in present AO has expired on August, 2003 and his legal heirs (LRs.) are not brought on record. The said respondent was died during the pendency of the original R.C.S. No. 723/1997, however, nobody has taken care to bring the LRs. of respondent no. 4 on record till date. As respondents are claiming rights in the suit property, their rights need to be adjudicated. It is further contended that the claim of the respondents if not adjudicated as per the provisions of law, the title of the Hiba holders would not become clear in accordance with law.

5. The learned counsel for the appellants relied on the citation in the case of Amba Bai and ors. V/s. Gopal and ors. reported in AIR 2001 SC 2003. In view of this judgment, it is submitted that the decree passed against the dead persons is nullity in the eyes of law, as such, the same should be quashed and set aside and the matter needs to be remanded back. Though learned District Court remanded the matter back, however, decree against the dead persons is required to be set aside and proper procedure has to be followed in respect of original deceased defendant no. 2(b) (respondent no. 4 in the present AO).

6. The learned counsel for the respondents have no objection even if the order of First Appellate Court is modified to that extent and remanded the matter back to the Trial Court for granting opportunity to take necessary steps as well as for fresh trial. Thus, the order passed by learned learned District Judge, Nagpur on 06/04/2017 is hereby modified as under, by allowing the present Appeal Against Order (AO) partly:-

“ORDER

(i) The appeal is partly allowed.

(ii) The judgment and decree passed by learned Joint Civil Judge, Senior Division, Nagpur in RCS 723/1997 dated 29/11/2013 is hereby quashed and set aside being nullity in view of death of respondent no. 2(b) during the pendency of suit.”

7. The learned District Judge, Nagpur to follow the procedure laid down under Order 41, Rule 23-A of the Code of Civil Procedure .

8. The matter is remanded back to District Judge, Nagpur to follow the procedure as per Order 41, Rule 23-A of C.P.C.

9. Parties to remain present before District Judge, Nagpur on 06/02/2023 at 11.00 a.m.