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Jiviben Lavji Raganath Vs. Jadavji Devshanker and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 22 of 1977
Judge
Reported inAIR1978Guj32; (1977)GLR883
ActsCode of Civil Procedure (CPC), 1908 - 0rder 22, Rule 11
AppellantJiviben Lavji Raganath
RespondentJadavji Devshanker and ors.
Appellant Advocate P.V. Hathi, Adv.
Respondent Advocate A.P. Ravani, Adv.
Excerpt:
- - 3. it is well settled that when a sole plaintiff or a sole appellant in appeal dies, the appeal abates......was decided on merits; and the high court reversed the judgment and decree of dismissal of the suit passed by the courts below and decreed the suit for possession. naturally, therefore, present appellant took out execution proceedings for execution of that decree; and in execution proceedings, the respondents judgment-debtors contended that the decree in favour of the plaintiff having been passed in second appeal after his death and he being the sole appellant, was a nullity; and. therefore, not executable' this contention, though it did not find favour with the lower appellate court, ultimately found favour with the learned single judge in second appeal, who held that the decree was a nullity. he, therefore, allowed the appeal; and the order passed by the executing court regarding.....
Judgment:

Desai, J.

1. This matter arises out of the execution of a decree. The appellant is the heir of original plaintiff-decree holder whose suit for eviction under the Saurashtra Rent Act was dismissed by the trial Court and the District Court. That original plaintiff filed a Second Appeal in the year 11965; and during the tendency of the said appeal, he died on April 3, 1968. But the High Court and the respondents in the High Court did not know of the death of the said appellant-plaintiff. The result was that the appeal was decided on merits; and the High Court reversed the judgment and decree of dismissal of the suit passed by the Courts below and decreed the suit for possession. Naturally, therefore, present appellant took out execution proceedings for execution of that decree; and in execution proceedings, the respondents judgment-debtors contended that the decree in favour of the plaintiff having been passed in Second Appeal after his death and he being the sole appellant, was a nullity; and. therefore, not executable' This contention, though it did not find favour with the lower appellate Court, ultimately found favour with the learned Single Judge in Second Appeal, who held that the decree was a nullity. He, therefore, allowed the appeal; and the order passed by the Executing Court regarding issuance of warrant was set aside. and the Darkhast was ordered to be dismissed. Against this judgment in the Second Appeal, the Darkhastdar i. e the heir of the original plaintiff has preferred this Letters Patent Appeal.

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*Against Judgment of N. H. Bhatt J. in Second Appeal No. 317 of 1975 reported in : (1977)18GLR504 .

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2. The short question which arises for determination in this Letters Patent Appeal is, whether the decree passed in Second Appeal after the death of the sole appellant in favour of the appellant was a nullity There is no difficulty in answering this question.

3. It is well settled that when a sole plaintiff or a sole appellant in appeal dies, the appeal abates. Therefore, there is no proceeding before the Court in which the Court is seized of the list between the parties. In such a case, the Court lacks inherent jurisdiction to pass any order; and if a decree is passed in ignorance of the death of the sole appellant. the decree evidently would be a nullity. This principle must follow from the following observations of the Supreme Court reported as HiraLal v. Kali Nath : [1962]2SCR747 , (at p. 200). The Supreme Court observed as under in paragraph 4:

'The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizing of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at, the time the suit had been instituted or decree pa d, or some such other ground which could have the effect of. rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.

4. In the -present case. this . Court in Second Appeal could not have seizin of the case because the sole appellant had died; and, therefore, it entirely lacked jurisdiction over one of the parties to the suit in whose favour, the decree came to be passed. A Division Bench of the Bombay High Court in Amarsingji v. Desai Umed, AIR 1925 Bom 290 also made some observations which would lead us to the same conclusion. In that case four appeals were heard after the death of the appellant in each of the appeals; and the question before the Division Bench was, whether the judgment of the lower Court in the four suits would stand inasmuch as the appeals had abated before they were heard. Marten, J., made some observations in the course of his judgment which lend support to the aforesaid view. These observations are: 'In the events which have happened, the lower appellate Court had really no jurisdiction to hear the appeals as there was no appellant before it.'

5. It was contended on behalf of the appellant in the present case that a decree against a dead person may be a nullity, but a decree in favour of a dead person in case where that party is the sole appellant or respondent, cannot be a nullity. We see no principle to distinguish the case of a decree in favour of a dead person from the case of a decree against a dead person. The real principle is whether the Court had inherent jurisdiction ~o pass a decree in such a case. It lacked inherent jurisdiction because it had no seizin of the case as the sole appellant was dead; and no application for bringing heirs on record was made within the period of limitation. It is obvious that the abatement of a suit or an appeal is automatic; and no order of the Court is needed therefore Therefore, in a case where a single or sole appellant died during the pendency of the appeal; and in the absence of his legal representatives the appeal came to be heard and a decree came to be passed in his favour, the said decree is a nullity, inasmuch as the appellate Court was not seized of the case on account of the death of the sole appellant and lacked inherent jurisdiction to pass any decree in such an appeal. In our view, therefore, the conclusion of the learned Single Judge was correct.

6. In the result, the appeal fails and is dismissed. However, there will be no order as to costs,

7. Appeal dismissed.


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