Virender Singh, J
1. The appellants have preferred the present Regular Second Appeal against the judgment and decree dated 28.09.2019, passed by the Court of
learned District Judge, Shimla, District Shimla, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No.1-S/13 of 2019,
titled as ‘Smt. Surindra and others vs. Kumari Tejasvita and others.
2. During the pendency of appeal, an application under Order 22 Rule 4 CPC has been moved for bringing on record the LRs of deceased respondent
No.2 Sh. Ajmer Singh, which has been registered as CMP(M) No. 937 of 2022 and decided by this Court vide order dated 18.05.2023.
3. Today, learned counsel appearing for the appellants has pointed out that although the LRs of respondent No.2 have been impleaded in the present
appeal on account of his death, but, his death had occurred on 14.08.2018, when the lis was pending before the learned First Appellate Court, as such,
according to learned counsel for the appellants, decree passed by the Court for or against a dead person is nullity.
4. Undisputedly, the matter has been decided against a dead person, as, no efforts have been made to bring on record the LRs of Sh. Ajmer Singh.
Decree passed by the Court for or against a dead person is nullity.
5. The Hon’ble Apex Court in ‘Gurnam Singh (Dead) through Legal Representatives & Ors. Vs. Gurbachan Kaur (Dead) by Legal
Representatives’ (2017) 13 SCC 414 has observed in para No.21 as under:-
“It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its
validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be
enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to
the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree
passed by a Court for or against a dead person is a ‘nullity’.â€
6. In view of the above, this Court has left with no option, but to set aside the judgment and decree passed by the learned First Appellate Court and to
remand the matter back to the learned First Appellate Court for fresh disposal in accordance with law. Since the lis is pending between the parties
from the year 2017, as such, it is expected from learned First Appellate Court to decide the matter expeditiously.
7. With these observations, the judgment and decree dated 28.09.2019 passed by the learned First Appellate Court is set aside. Parties through their
counsel are directed to appear before the learned First Appellate Court on 24.04.2024.
8. Record be sent back immediately.
