O R D E R

During service of respondents, it was reported by Process Serving Agency that respondent No. 17(iv) Hari Mohan has expired. On further inquiry, it was found that he has expired on 17.1.2017, during pendency of Civil Appeal before Additional District Judge-II, Solan, which was filed on 31.5.2014 and decided on 30.3.2019.

2. Bal Krishan, respondent No. 17 in Civil Appeal filed before Additional District Judge, had expired after passing of judgment in the Civil Suit and during his service in the said Civil Appeal, his death came in knowledge and accordingly his legal heirs were brought on record. In Civil Suit Bal Krishan was proceeded ex parte, but in appeal his successors-in-

interest engaged an Advocate and contested the appeal.

3. Respondent No. 12 Batu also expired, on 7.8.2017, during pendency of Civil Appeal before First Appellate Court. Her Legal Heirs are already on record as respondents No. 8 to 11 and 13 to 14, and her name stands deleted in the record of present appeal vide order dated 19.4.2022, passed in CMPs(M) No. 429 and 430 of 2020. She was proforma- defendant/respondent and was proceeded ex-parte in the Civil Suit as well as in the First Appeal. Her legal heirs, who are party in the lis, were also duly served and proceeded ex-parte in both the Courts below.

4. For completion of record of First Appellate Court, name of respondent No. 12 Batu is also required to be deleted in the record of the First Appellate Court because she had expired during pendency of the First Apeal.

5. This Court, vide judgment dated 24.05.2021, passed in RSA No.261 of 2019, titled as Jaishi Ram vs. Manohar Lal and others after taking into consideration relevant provisions of law as well as judgments passed by this High Court previously and also pronouncements of the Supreme Court in cases Gurnam Singh (Dead) through Legal Representatives and others vs. Gurbachan Kaur (Dead) by Legal Representatives, reported in (2017) 13 SCC 414; Sher Singh and others vs. Raghu Ram and others, 1981 S.L.C. 25; Ram Rakha and others vs. Brahma Nand and others, 1994 (Supp) S.L.C. 29; Jagdish vs. Ram Karan and others, 2002(1) Current Law Journal (H.P.) 232, referred in Dewana and another vs. Gian Chand Malhotra and others, Latest HLJ 2011 (HP) 1420 and also judgments in Jaswant Singh vs. State of Himachal Pradesh and others, 2015(2) Shim.L.C. 674; Jagan Nath and others vs. Ishwari Devi, 1988 (2) Shim.L.C. 273; Karam Chand and others vs. Bakshi Ram and others, 2002(1) Shim.L.C. 9; and Gurnam Singh (dead) by legal representatives and others vs. Gurbachan Kaur (dead), (2017) 13 SCC 414, referred in Tara Wati and others vs. Suman & others, Latest HLJ 2018 (HP) 1046, has held as under:-

“9. It is well settled that a decree in favour of or against a dead person is nullity. For non substitution of legal representatives of deceased defendant, out of several defendants, may cause abatement of appeal against the deceased defendant or as a whole, depending upon the effect of non substitution of legal representatives of deceased defendant on the relief claimed. Appellant/plaintiff has set up a case of ignorance of death of defendants.

10. In view of judgments relied upon by the appellant, referred supra, an application for setting aside abatement and substitution of legal representatives of deceased defendants should have been made and dealt with by the Court in which abatement occurred as abatement is automatic irrespective of passing of or not passing of such order by the Court and question whether suit to abate in toto or in part, has also to be decided by the same Court where during pendency of the appeal one of parties had expired before hearing the arguments and where he was a necessary party to the lis and his legal representatives have not been brought on record, and issues as to whether there was sufficient cause for setting aside the abatement or whether legal representatives of deceased are to be brought on record or not in relation to a suit or appeal, at