whether the High Court had the jurisdiction to decide the second appeal when the appellant and 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record?whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. =Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5671 OF 2017
(ARISING OUT OF SLP (C) No.26798/2011)

Gurnam Singh(D) Thr. Lrs. & Ors. …Appellant(s)

VERSUS

Gurbachan Kaur(D) By Lrs.
& Ors. …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the legal representatives of defendant Nos. 2
and 4 against the final judgment and order dated 18.05.2012 passed by the
High Court of Punjab and Haryana at Chandigarh in Civil Regular Second
Appeal No. 1148 of 1985 whereby the High Court allowed the plaintiff’s
appeal, set aside the concurrent findings of the Trial Court and the First
Appellate Court and decreed the plaintiff’s suit for specific performance
of contract against the defendants in relation to the suit land.
3) The facts of the case lie in a narrow compass so also the controversy
involved in the appeal is short. However, only relevant facts to appreciate
the question involved are mentioned infra.
4) One Surjan Singh(defendant No.1) was the original owner of the suit
land bearing Khasra Nos. 1806, 1807, 1808 and 1809 (new numbers 91R/2/3,
12, 9, 10, 11, 90R/6 and 15) measuring 43 Kanals 4 Marlas situated in
village Rasulpur, Tahsil/District Amritsar (hereinafter referred to as “the
suit land”).
5) On 06.05.1974, Surjan Singh entered into a contract to sell the suit
land to one Gurbachan Kaur(plaintiff) for Rs.10,000/- per Killa. In terms
of the contract, the sale deed of the suit land was to be executed by
Surjan Singh in favour of Gurbachan Kaur on or before 28.01.1975.
6) On 03.09.1974, Surjan Singh sold the suit land to Joginder Singh,
Mehal Singh and Gurnam Singh. This led to filing of the civil suit by
Gurbachan Kaur against Surjan Singh(defendant No.1) and subsequent
purchasers, namely, Joginder Singh(defendant No.2), Mehal Singh(defendant
No.3) and Gurnam Singh(defendant No.4). The suit was for specific
performance of contract dated 06.05.1974 filed by Gurbachan Kaur against
the aforementioned 4 defendants in relation to the suit land. The
defendants contested the suit. Parties went on trial.
7) By judgment/decree dated 29.08.1980, the Trial Court dismissed the
suit insofar as it pertained to grant of relief of specific performance of
contract was concerned but decreed the suit by granting money decree for
Rs.7000/- in plaintiff’s favour. In this way, the suit was partly decreed
and partly dismissed.
8) Felt aggrieved, the plaintiff-Gurbachan Kaur alone filed the first
appeal in the Court of District Judge. So far as the defendants are
concerned, they did not file any appeal against the money decree suffered
by them. By judgment/decree dated 06.11.1984, the first Appellate Court
dismissed the appeal filed by the plaintiff and affirmed the
judgment/decree of the Trial Court.
9) Felt aggrieved, the plaintiff- Gurbachan Kaur carried the matter
further and filed Second Appeal before the High Court. The appeal was
admitted for final hearing on substantial questions of law framed by the
High Court.
10) During pendency of the second appeal, Gurbachan Kaur-
appellant(plaintiff) died on 10.05.1994. Likewise, Joginder Singh
(respondent- defendant No.2) died on 06.12.2000 and lastly Gurnam
Singh(respondent-defendant No.4) also died on 19.04.2002. Despite bringing
to the notice of the High Court about the death of the appellant and the
two respondents, no steps were taken by anyone to bring their legal
representatives on record to enable them to prosecute the lis involved in
the appeal.
11) On 18.05.2010, the High Court allowed the second appeal, set aside
the judgment/decree of the two Courts below and decreed the plaintiff’s
suit for specific performance of the contract against the defendants in
relation to the suit land.
12) It is against this judgment of the High Court, the legal
representatives of defendant No.2(Late Joginder Singh) and defendant
No.4(Late Gurnam Singh) filed the present appeal by way of special leave
petition and sought permission to question its legality and correctness.
13) Heard Mr. Basava Prabhu S. Patil, learned senior counsel for the
appellants and Mr. Subhasish Bhowmick, learned counsel for the respondents.

14) The short question, which arises for consideration in this appeal, is
whether the impugned order allowing the plaintiff’s second appeal is
legally sustainable in law? In other words, the question is whether the
High Court had the jurisdiction to decide the second appeal when the
appellant and 2 respondents had expired during the pendency of appeal and
their legal representatives were not brought on record?
15) In a leading case of this Court in Kiran Singh & Others vs. Chaman
Paswan & Others (AIR 1954 SC 340), the learned Judge Venkatarama Ayyar
speaking for the Bench in his distinctive style of writing laid down the
following principle of law being fundamental in nature:
“It is a fundamental principle that a decree passed by a Court
without jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at
the stage of execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or whether it is in
respect of the subject-matter of the action, strikes at the very authority
of the Court to pass any decree, and such a defect cannot be cured even by
consent of parties.”

16) The question, therefore, is whether the impugned judgment/order is a
nullity because it was passed by the High Court in favour of and also
against the dead persons. In our considered opinion, it is a nullity. The
reasons are not far to seek.
17) It is not in dispute that the appellant and the two respondents
expired during the pendency of the second appeal. It is also not in
dispute that no steps were taken by any of the legal representatives
representing the dead persons and on whom the right to sue had devolved to
file an application under Order 22 Rules 3 and 4 of the Code of Civil
Procedure,1908 (for short, ‘the Code’) for bringing their names on record
in place of the dead persons to enable them to continue the lis.
18) The law on the point is well settled. On the death of a party to the
appeal, if no application is made by the party concerned to the appeal or
by the legal representatives of the deceased on whom the right to sue has
devolved for substitution of their names in place of the deceased party
within 90 days from the date of death of the party, such appeal abates
automatically on expiry of 90 days from the date of death of the party. In
other words, on 91st day, there is no appeal pending before the Court. It
is “dismissed as abated”.
19) Order 22 Rule 3(2) which applies in the case of the death of
plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of
defendant/respondent provides the consequences for not filing the
application for substitution of legal representatives by the parties
concerned within the time prescribed. These provisions read as under:-
Order 22 Rule 3(2)
“Where within the time limited by law no application is made under
sub-rule (1) the suit shall abate so far as the deceased plaintiff is
concerned, and, on the application of the defendant, the Court may award to
him the costs which he may have incurred in defending the suit, to be
recovered from the estate of the deceased plaintiff.”

Order 22 Rule 4(3)

“Where within the time limited by law no application is made under
sub-rule (1), the suit shall abate as against the deceased defendant.”

20) In the case at hand, both the aforementioned provisions came in
operation because the appellant and the two respondents expired during the
pendency of second appeal and no application was filed to bring their legal
representatives on record. As held above, the legal effect of the non-
compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into
operation resulting in dismissal of second appeal as abated on the expiry
of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore,
ceased to have jurisdiction to decide the second appeal which stood already
dismissed on 10.08.1994. Indeed, there was no pending appeal on and after
10.08.1994.
21) In our considered view, the appeal could be revived for hearing only
when firstly, the proposed legal representatives of the deceased persons
had filed an application for substitution of their names and secondly, they
had applied for setting aside of the abatement under Order 22 Rule 9 of the
Code and making out therein a sufficient cause for setting aside of an
abatement and lastly, had filed an application under Section 5 of the
Limitation Act seeking condonation of delay in filing the substitution
application under Order 22 Rules 3 and 4 of the Code beyond the statutory
period of 90 days. If these applications had been allowed by the High
Court, the second appeal could have been revived for final hearing but not
otherwise. Such was not the case here because no such applications had been
filed.
22) 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” (See-N. Jayaram Reddy & Anr. Vs. Revenue Divisional Officer &
Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, Ashok Transport Agency
vs. Awadhesh Kumar & Anr., (1998) 5 SCC 567 and Amba Bai & Ors. Vs. Gopal &
Ors., (2001) 5 SCC 570).
23) The appellants are the legal representatives of defendant Nos. 2 and
4 on whom the right to sue has devolved. They had, therefore, right to
question the legality of the impugned order inter alia on the ground of it
being a nullity. Such objection, in our opinion, could be raised in appeal
or even in execution proceedings arising out of such decree. In our view,
the objection, therefore, deserves to be upheld. It is, accordingly,
upheld.
24) In the light of foregoing discussion, we allow the appeal and set
aside the impugned judgment/decree.
……………………………………..J.
[R.K. AGRAWAL]
……………………………………….J.
[ABHAY MANOHAR SAPRE] New Delhi;
April 27, 2017
———————–
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