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. …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.

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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

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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.

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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.

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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.

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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 91

st

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

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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.

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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

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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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