As per case facts, the Maharashtra Krishna Valley Development Corporation (Applicant) filed an Interim Application seeking condonation of a significant delay of 2958 days in filing a First Appeal. The ...
ia11771-2025 in fast25914-2025-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.11771 OF 2025
IN
FIRST APPEAL (ST.) NO.25914 OF 2025
Maharashtra Krishna Valley
Development Corporation … Applicant
Vs.
1.Maruti Laxman Khedkar
2.The Special Land Acquisition
Officer No.6, Pune
3.The Collector, Pune … Respondents
Mr. Nitin Gaware Patil with Mr. Shivkumar J. and Ms.
Rupsee Nerlikar for the Appellant/Applicant.
Ms. Amrita Kharkar with Ms. Sayali Bhosale i/by P.H.
Potnis for Respondent No.1.
Mr. A.R. Patil, Advocate. for Respondent Nos.2 and 3-
State.
CORAM :AMIT BORKAR, J.
RESERVED ON :SEPTEMBER 8, 2026.
PRONOUNCED ON:SEPTEMBER 22, 2026
JUDGMENT:
1.By Interim Application No. 11771 of 2025, the
Appellant/Applicant is seeking condonation of delay of 2958 days
in filing the present First Appeal.
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.09.22
17:27:54 +0530
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2.The Applicant states that there has been delay in filing the
present First Appeal. According to the Applicant, the delay was not
intentional. It occurred because of circumstances which were
beyond its control. The Applicant is a statutory corporation and
before filing any proceeding before the competent Court, it has to
follow various administrative stages. The movement of the file
from one authority to another and the process of obtaining the
necessary approvals caused some delay. The Applicant states that
such delay was part of the administrative process and was not
deliberate. It is further stated that the dispute is an old one and
considerable time was required for collecting and arranging all the
documents relating to the present matter. The file had to pass
through several stages for obtaining approval to file the present
First Appeal. According to the Applicant, the decision to file the
appeal was taken only after examining the merits of the dispute.
The Applicant has relied upon the Covid-19 pandemic and has
stated that the functioning of the Corporation was affected from
20 March 2020 until about the middle of 2022, which further
contributed to the delay in filing the present First Appeal.
3.The Applicant submits that the movement of the file at
different stages for obtaining sanction and approval is set out in
the application. The learned District Judge, Pune, passed the
judgment and Award in Land Reference No. 16 of 2002 on 22
March 2017 and awarded compensation in respect of the acquired
land. The Applicant states that during the period from 20 March
2020 to the middle of 2022, its functioning was affected because
of the Covid-19 pandemic. The Corporation had to work with
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limited manpower and under various restrictions. The functioning
of the Courts was affected during this period. The Applicant
further relies upon the order dated 23 March 2020, by which the
Supreme Court directed that the period of limitation prescribed
under the general law of limitation or under any special law,
whether Central or State, for filing petitions, applications, suits,
appeals and other proceedings, whether such period was
condonable or not, would stand extended from 15 March 2020
until further orders.
4.The Applicant further states that on 6 May 2020, the
Supreme Court extended the periods of limitation prescribed
under the Arbitration and Conciliation Act, 1996 and under
Section 138 of the Negotiable Instruments Act, 1881 with effect
from 15 March 2020 until further orders. It was directed that
where the period of limitation had expired after 15 March 2020,
the period from 15 March 2020 until the date on which the
lockdown was lifted in the concerned jurisdiction would be
extended for a further period of 15 days. Thereafter, on 27 April
2021, because of the fresh increase in Covid-19 cases, the Supreme
Court restored its earlier order dated 23 March 2020, along with
the order dated 8 March 2021. The Supreme Court further
suspended the period of limitation prescribed under general or
special laws in respect of judicial and quasi-judicial proceedings
until further orders, by exercising powers under Article 142 read
with Article 141 of the Constitution of India. The matter was
thereafter listed on 19 July 2021. According to the Applicant the
period of limitation from 15 March 2020 remained suspended
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until the same was restored.
5.The Applicant states that on 18 November 2021, the Special
Land Acquisition Officer informed the Applicant about the
judgment passed in Land Reference No. 16 of 2002 and directed
the Applicant to release the amount payable pursuant to the said
judgment. On 24 November 2022, the Applicant communicated
with the Special Land Acquisition Officer and expressed its
willingness to deposit the amount. It requested that the amount
payable be calculated. On 30 November 2022, the Special Land
Acquisition Officer calculated the amount and communicated the
same to the Applicant. Thereafter, on 5 June 2023, Bhama Ashked
Division communicated the said details to Pune Irrigation Project
Circle. On 23 June 2023, Pune Irrigation Project Circle forwarded
the matter to the Regional Office of the Applicant. On 12 July
2023, Bhama Ashked Division sought advice from Pune Irrigation
Project Circle as to whether a First Appeal should be filed. On 7
August 2023, the Executive Engineer of the Applicant met the
Legal Advisor. Thereafter, on 21 August 2023, Bhama Ashked
Division informed Pune Irrigation Project Circle that Darkhast
proceedings had been filed and requested that the First Appeal be
filed immediately.
6.The Applicant further states that on 15 September 2023, its
Legal Advisor advised that a cross appeal should be filed. On 11
October 2023, a communication was sent to the Advocate's office
for filing the cross appeal. A further communication was sent to
the Advocate's office on 27 December 2023 for the same purpose.
On 31 January 2024, the Advocate's office sent an email to the
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Applicant requesting certified copies. On 10 February 2024,
another email was sent by the Advocate's office requesting details
to explain the delay in filing the appeal. On 13 February 2024,
Bhama Ashked Division sent an email to Temghar Sub-Division
seeking the required details. On 6 March 2024, Temghar Sub-
Division informed Bhama Ashked Division by email that an
application for certified copies had been made on 28 February
2024.
7.The Applicant further states that on 27 March 2024, the
Advocate's office sent a reminder seeking the details required for
explaining the delay. The certified copies were received on 1 April
2024. On 15 April 2024, the certified copies were handed over to
the Advocate's office. Thereafter, on 1 July 2024, the details
regarding the delay were sent to the Advocate's office. On 12 July
2024, Bhama Ashked Division directed Temghar Division to meet
the Advocate personally. On 1 October 2024, a representative of
the Applicant Corporation visited the Advocate's office and the
draft appeal was settled. Thereafter, on 15 October 2024, 18
October 2024, 20 November 2024, 9 December 2024 and 2
January 2025, the Advocate's office issued letters to the Applicant
requesting payment of Court Fees and miscellaneous expenses
required for filing the First Appeal. On 5 March 2025, the letter
along with the amount towards Court Fees and miscellaneous
expenses was received from the Applicant. Consequently, the
present First Appeal came to be filed on 15 April 2025.
8.Mr. Patil, learned Advocate for the Appellant, submitted that
apart from Section 141 of the Code of Civil Procedure, 1908,
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Section 53 of the Land Acquisition Act makes the provisions of the
Code of Civil Procedure applicable to the proceedings before the
Reference Court under Section 18 of the Land Acquisition Act. He
submitted that for the purpose of such reference, the claimant has
to be treated as the plaintiff and the Land Acquisition Officer as
the defendant. Therefore, according to him, it was the
responsibility of the claimant to bring the legal representatives of
the claimant on record. He submitted that in the present case,
Respondent No.1 was the sole claimant and admittedly died before
the final arguments could be made in the reference proceedings.
9.Mr. Patil distinguished the judgment of this Court in the case
of
Special Land Acquisition Officer (2) vs. Harichandra Ramji Patil,
2000 (1) Bom. C.R. 569. He submitted that in that case, this Court
had considered the provisions of Order XXII Rule 10A of the Code
of Civil Procedure, which requires the Advocate of a deceased
person to inform the other side about the death of his client. Mr.
Patil, learned Advocate, relied upon the judgments in
Ganpat
Hiraman Chavan, deceased through LRs vs. The District
Magistrate, Jalgaon,
Writ Petition No.8831 of 2017 (Aurangabad
Bench), decided on 12 July 2017
, Dy. Collector and Land
Acquisition Officer vs. Patel Parsottambhai Pragjibhai,
2019 SCC
OnLine Guj 7146
, Chander & Others vs. Mauji & Others, 1988 SCC
OnLine Del 234
, and Smt. Ram Piari vs. Union of India, 1977 SCC
OnLine Del 117.
10.Per contra, Ms. Kharkar, learned Advocate for Respondent
No.1, submitted that the reference under Section 18 of the Land
Acquisition Act cannot be treated as having abated merely because
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the claimant died. According to her, it was the responsibility of the
State Government or the Special Land Acquisition Officer to bring
the legal representatives of the claimant on record. She submitted
that in proceedings under Section 18 of the Act, the Special Land
Acquisition Officer is the applicant and has control over the
proceedings. Therefore, according to her, it was his responsibility
to bring the legal representatives of the claimant on record.
11.Relying upon the judgment of the Supreme Court in Khazan
Singh vs. Union of India,
(2002) 2 SCC 242, Ms. Kharkar
submitted that the Civil Court is required to pass an award in
answer to the reference made by the Collector under Section 18 of
the Act. She submitted that if a party, after receiving notice from
the Civil Court, does not participate in the enquiry, the
consequences would be at the risk of that party because the Award
may be passed to its disadvantage. Therefore, such non-
participation does not give the Civil Court jurisdiction to dismiss
the reference for default. She submitted that the strict
requirements of Order XXII would not apply in the same manner to
proceedings under the Land Acquisition Act. According to her, a
decree passed against a dead person may be a nullity, but the
position is different when an order or Award is passed in favour of
a deceased person. She submitted that, unless the Applicant gives
a proper explanation for the entire period of delay, the delay
cannot be condoned, particularly when the Award passed by the
Reference Court is not a nullity.
12.In support of her submissions, Ms. Kharkar relied upon the
judgments in
N. Jayaram Reddy & Others vs. Revenue Divisional
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Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, K.V.
Gopalan vs. Nandini Narayanan & Others,
2014 SCC OnLine Ker
28693
, State of Punjab & Others vs. Gurudev Singh & Others,
(1991) 4 SCC 1, Abdul Azeez Sahib vs. Dhana-bagiammal &
Others,
1981 SCC OnLine Mad 254, Vikram Bhalchandra
Ghongade vs. State of Maharashtra & Others,
2025 SCC OnLine SC
2360
, Abdul Aziz vs. Regional Manager, Indian Oil Corporation &
Others,
Civil Writ Petition No.19565 of 2015, decided on 17
February 2026
, and Special Land Acquisition Officer (2) vs.
Harichandra Ramji Patil,
2000 (1) Bom CR 569.
13.I have considered the submissions made by the learned
Advocate for the Appellant/Applicant and the learned Advocate for
Respondent No.1. I have considered the judgment and Award
passed by the learned District Judge, Pune in Land Reference
No.16 of 2002, the explanation given by the Applicant for the
delay of 2958 days, and the judgments relied upon by both sides.
The questions which arise for consideration are firstly, whether the
death of Respondent No.1, who was the sole claimant before the
Reference Court, before the matter was finally heard and decided,
resulted in abatement of the reference and whether the Award
thereafter passed in his favour is a nullity; and secondly, whether
the said circumstance by is sufficient to condone the delay in filing
the present First Appeal.
Effect of death of the sole claimant:
14.There is no serious dispute about the basic facts. Respondent
No.1 was the sole claimant in the reference. He died during the
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pendency of the reference proceedings and before arguments were
heard. His legal representatives were not brought on record before
the learned Reference Court passed the judgment and Award dated
22 March 2017. The Award was passed in the name and in favour
of a person who was dead.
15.The first submission of the Applicant is that the legal
representatives of the deceased claimant were required to be
brought on record and that, in their absence, the proceeding could
not have been continued. This submission finds support from the
judgment of this Court in
Harichandra Ramji Patil. In paragraph 9
thereof, it has been held that Section 53 of the Land Acquisition
Act, read with Section 141 of the Code of Civil Procedure, makes
the provisions of Order XXII applicable to a reference proceeding.
The Court held that there is no inconsistency between Order XXII
and the provisions of the Land Acquisition Act. In paragraph 10 of
Harichandra Ramji Patil, this Court considered upon whom the
responsibility lies to bring the legal representatives of a deceased
claimant on record. It held that once a person approaches the
Court for enhancement of compensation, the position is similar to
that of a plaintiff in a suit and the duty to take steps for
substitution is on the claimant side. The Court noticed that the
burden of establishing that the compensation offered by the
acquiring authority is inadequate lies upon the claimant.
16.The same principle has been explained by the Full Bench of
the Delhi High Court in
Chander. In paragraph 23, after referring
to Section 26 and Section 54 of the Land Acquisition Act, the Court
held:
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“Such an appeal would be governed by the provisions of
Code of Civil Procedure. We are in respectful agreement with
the reasoning and view taken by the Division Bench of this
Court in “
Union of India v. Rameshwar Nath (supra) that an
appeal against a decree of a Court upon a reference under
Section 18 of the Act is an appeal under the Code of Civil
Procedure and the provisions of Order 22 of the Code apply
to such an appeal and that the limitation applies to such an
appeal.”
17.The Full Bench further held that the Code of Civil Procedure
governs not only the right of appeal but the procedure to be
followed in such appeal, including Order XXII and limitation. Thus,
the submission that a reference under the Land Acquisition Act is
not technically a suit and Order XXII cannot apply, cannot be
accepted.
18.In paragraph 24 of Chander, the Full Bench answered that
the provisions of the Limitation Act and Order XXII are applicable
to proceedings under Section 30 and that there is no difference
between an appeal arising from Section 18 proceedings and an
appeal arising from Section 30 proceedings for the purpose of
abatement. The reasoning of
Ram Piari was held applicable.
Therefore, there is sufficient judicial basis for holding that the
provisions relating to death, substitution and abatement apply to
the present reference.
19.The decision in Patel Parsottambhai Pragjibhai is concerned
with a claimant dying during pendency of a reference. In
paragraph 42, the Court held:
“42. From conjoint reading of above mentioned provision it
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comes out that if sole claimant or one of the claimants die
during pendency of the proceedings before Reference Court
then the heirs/legal representatives of deceased claimant (if
they desire to continue the proceeding/reference) are
obliged to take, steps in accordance with the procedure
prescribed under Rule 3(or Rule 4, as the case may be) and
Rule 10(A) of Order XXII of the Code.”
20.The Court thereafter held in paragraph 43:
“43. If the heirs and/or the legal representatives of any
claimant (who died during pendency of the reference
proceedings) fail to take steps in accordance with Rule 3(or
Rule 4, as the case may be) then the reference (in case of
sole claimant) qua the deceased claimant or the claim (in
case where there are more than one claimant in the
reference case) would abate (upon death of the claimant).”
21.These observations apply to the facts of the present case.
Here there was a sole claimant. After his death, no legal
representative was brought on record. Therefore, upon expiry of
the prescribed period, the reference stood abated in the absence of
an application to continue the proceeding through the legal
representatives.
22.The contention of the learned Advocate for Respondent No.1
that the Special Land Acquisition Officer or the State ought to have
taken steps to bring the legal representatives on record cannot be
accepted in the form in which it is urged. The judgment in
Harichandra Ramji Patil holds that the claimant side has the
obligation to move for substitution. The fact that, as a matter of
practice, the amendment in the reference may thereafter be carried
out through the Government Advocate or the Land Acquisition
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Officer does not shift the substantive responsibility of seeking
continuation of the proceedings upon the legal representatives of
the deceased claimant.
23.The reliance placed upon Khazan Singh v. Union of India
does not take the case of Respondent No.1 any further. In Khazan
Singh
, the question before the Supreme Court was whether a
reference under Section 18 could be dismissed for default merely
because the claimant or his counsel did not remain present. The
Supreme Court held that the Civil Court is required to answer the
reference and cannot dismiss it merely for non-appearance of the
claimant. The factual situation there was of a living claimant who
did not appear before the Reference Court. It was not a case where
the sole claimant had died and the legal representatives had failed
to seek substitution. Therefore,
Khazan Singh cannot be read as
dispensing with the provisions of Order XXII in a case where the
sole claimant has died. There is a material difference between
absence of a living claimant and the complete absence of the party
in whose favour the reference is required to be adjudicated. In the
first situation, the Court may be required to answer the reference
despite non-appearance. In the second situation, the Court has to
first consider the legal consequence of death and the failure to
bring the legal representatives on record.
Whether the Award is a nullity:
24.The next question is what is the legal effect of an Award
thereafter passed in favour of the deceased sole claimant. The
learned Advocate for the Applicant has placed reliance upon
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Gurnam Singh. In paragraph 14, while referring to Kiran Singh,
the Supreme Court held:
“
6. … It is a fundamental principle well established 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.”
25.In Gurnam Singh, the Supreme Court then considered the
case where the parties had died during the pendency of the second
appeal and no legal representative had been brought on record. In
paragraph 15, the Court answered the question whether the
judgment passed in favour of and against dead persons was a
nullity in the affirmative. In paragraph 17, it further held that
when substitution is not sought within the prescribed period, the
appeal abates automatically. In paragraph 20, the Court made it
clear that before the appeal can be revived, the legal
representatives must seek substitution, setting aside of abatement
under Order XXII Rule 9 and, where necessary, condonation of
delay under Section 5 of the Limitation Act. The sequence
prescribed by the Supreme Court cannot be ignored. The Supreme
Court has considered the same question in
Vikram Bhalchandra
Ghongade
. The facts of that case are important. The appellants
before the first appellate Court had died before the appeal was
heard. Their legal representatives had not been brought on record.
The first appellate Court nevertheless heard and decided the
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appeal. The Supreme Court held that the protection under Order
XXII Rule 6 was not available because the deaths had taken place
before the hearing of the appeal. It held the judgment in favour of
the deceased appellants to be a nullity and held that the decree of
the trial Court continued to be enforceable. The decision in
Vikram
Bhalchandra Ghongade
is of considerable significance because the
Supreme Court dealt with an adjudication made after the death of
the party who had invoked the jurisdiction of the appellate Court.
The Court considered the fact that 90 days had not expired in one
of the cases before the appellate decision was pronounced, but
nevertheless held that the material fact was that the appellants
were dead when the appeal was heard and decided. The judgment
was consequently held to be a nullity.
26.The Applicant has considerable force in contending that an
adjudication made after the death of the sole claimant, in
circumstances where his legal representatives were not before the
Court and the reference had abated, cannot be treated as binding
upon the estate of the deceased claimant. The defect is not a mere
error in appreciation of evidence or procedural irregularity. The
person in whose favour the adjudication is made was no longer
before the Court and the right to continue the proceeding had not
been represented through his legal representatives. The other side
of the matter cannot be ignored. The learned Advocate for
Respondent No.1 has relied upon
K.V. Gopalan, where a learned
Single Judge of the Kerala High Court observed that a decree
passed in favour of a dead person is an irregularity and not a
nullity and that such decree may have to be set aside by
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appropriate proceedings. The said decision explains that the
position concerning a decree in favour of a dead person had been
treated differently from a decree against a dead person.
27.In my view that principle cannot be mechanically applied to
the present facts after considering the later decision of the
Supreme Court in
Vikram Bhalchandra Ghongade. Here the issue is
not merely that the Reference Court inadvertently pronounced an
Award in the name of a claimant who had died. The claimant had
died before the hearing was completed. He was the sole claimant.
No legal representative was brought on record. The reference had
consequently abated. Thereafter the Reference Court proceeded to
pronounce an Award in favour of the deceased claimant. The
defect goes beyond the question whether the Court was informed
about the death. The proceeding had ceased to remain pending
against a living party capable of prosecuting the claim, unless the
abatement was set aside and the legal representatives were
brought on record.
28.This conclusion is consistent with paragraph 46 of Patel
Parsottambhai Pragjibhai
, where the Gujarat High Court
considered the situation where a claimant dies before the Award
and the reference in respect of that claimant stands abated. It held
that, so long as the abatement is not set aside and the judgment
and Award is not modified so as to bring the heirs on record, the
heirs cannot proceed with an appeal against the Award passed in
respect of the deceased person. In paragraph 47, the Court further
held that the Court before which the reference was pending at the
time of death is the Court competent to set aside the abatement.
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This reasoning is applicable here. There is an important distinction
between an Award which is merely irregular because the Court
was unaware of the death and an Award passed after the
proceeding had abated because no legal representative had been
brought on record. In the present case, it is the second situation
which arises. The death occurred during the reference. The sole
claimant was not substituted. The prescribed period expired.
Thereafter, the Award was passed. Therefore, the Reference Court
proceeded to conclude the reference after the proceeding had
abated.
29.Considering the above authorities together, I am of the view
that the Award dated 22 March 2017, insofar as it was passed in
favour of the deceased sole claimant after the reference had abated
and without bringing his legal representatives on record, is a
nullity. It cannot be treated as a valid Award merely because it was
pronounced by a competent Reference Court. The jurisdiction to
decide the reference had attached in the lifetime of the claimant,
but the proceeding could not continue after his death without
compliance with Order XXII and without setting aside the
abatement. The subsequent Award did not acquire legal force
against the estate merely by reason of its pronouncement.
Effect of nullity upon limitation:
30.Having held that the Award passed by the Reference Court in
favour of the deceased sole claimant is a nullity, the next question
is whether the delay of 2958 days in filing the present First Appeal
can prevent the Applicant from challenging the said Award. In my
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view, it cannot, for the reasons which follow. Ordinarily, when a
party wants to challenge a judgment, decree or Award after the
period of limitation, the party is required to show “sufficient
cause” for the delay under Section 5 of the Limitation Act. This is
because the judgment or decree is otherwise a valid adjudication
and, after the period prescribed by law, the opposite party gets a
right to rely upon its finality. But the position is different where the
adjudication is a nullity. A nullity does not become a valid
adjudication only because some period has passed. The defect goes
to the very authority and foundation of the Court's adjudication.
The settled principle in this regard is that a decree which is a
nullity can be questioned whenever and wherever it is sought to be
enforced or relied upon. In
Kiran Singh, as quoted by the Supreme
Court in
Gurnam Singh , the following principle has been laid
down:
“
6. … It is a fundamental principle well established 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.”
31.The expression “whenever and wherever” has significance. It
means that where the defect goes to the root of the jurisdiction of
the Court, such defect is not cured merely because the person
affected did not challenge the decree immediately. At the same
time, it is necessary to keep in mind the distinction between a
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nullity and an erroneous decree. Every wrong order is not a nullity.
If the Reference Court had jurisdiction over the parties and the
subject matter, but had wrongly appreciated the evidence, wrongly
applied the law or awarded excessive compensation, the Award
may be wrong, but it would not for that reason become a nullity.
Such an Award has to be challenged within the period prescribed
by law and, if the appeal is filed late, sufficient cause for the delay
has to be shown. The present case is not of that nature. The sole
claimant had died during the pendency of the reference and before
the matter was heard and decided. No legal representative was
brought on record. Even thereafter, the Reference Court proceeded
to hear the matter and passed the Award in favour of the person
who had died. Thus, the Applicant is not merely questioning the
correctness of the compensation awarded by the Reference Court.
The Applicant is questioning whether the Reference Court could
have proceeded to decide the claim at all in the absence of the sole
claimant and in the absence of his legal representatives.
32.The principle stated in Gurdev Singh needs to be considered.
The Supreme Court, after referring to
Smith v. East Elloe Rural
District Council
, observed:
“An order, even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of invalidity
on its forehead. Unless the necessary proceedings are taken
at law to establish the cause of invalidity and to get it
quashed or otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders.”
33.This principle means that a person cannot treat every order
as void without having its invalidity established in the proper
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proceedings. It does not mean that an order which is found to be a
nullity becomes valid merely because the limitation period has
expired. Therefore, once the competent Court examines the matter
and finds that the adjudication is a nullity, the question of delay
has to be considered keeping that finding in view.
34.Prof. Wade, as noticed in Gurdev Singh, has stated:
“The truth of the matter is that the court will invalidate an
order only if the right remedy is sought by the right person
in the right proceedings and circumstances. The order may
be hypothetically a nullity, but the court may refuse to quash
it because of the plaintiff's lack of standing, because he does
not deserve a discretionary remedy, because he has waived
his rights, or for some other legal reason. In any such case
the ‘void’ order remains effective and is, in reality, valid. It
follows that an order may be void for one purpose and valid
for another; and that it may be void against one person but
valid against another.”
35.Therefore, the Court has first to decide whether the defect is
a nullity or only an error or irregularity. If it is an ordinary error,
limitation applies. If it is a true nullity affecting the authority of
the Court, the position is different. In the present case, the defect
is not merely an error committed while deciding the reference. The
sole claimant had ceased to be alive before the Reference Court
heard and decided the matter. No legal representative was brought
on record. The Reference Court nevertheless passed the Award in
favour of the deceased claimant. The question is not whether the
Reference Court correctly or incorrectly determined the
compensation. The question is whether an Award could be passed
in favour of a person who was dead and whose legal
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representatives were not before the Court.
36.This position receives further support from Vikram
Bhalchandra Ghongade
. In that case, the appellants had died
before the first appeal was heard and decided. The Supreme Court
did not accept the argument that the appeal remained valid merely
because the period of 90 days for bringing the legal representatives
on record had not expired. The Supreme Court held:
“The judgment pronounced in the first appeal on 20.10.2010
was, thus, in favour of the parties who were no more alive.
The said adjudication amounted to a nullity and the same
did not have the force of law.”37.The Court further held:
“The appellant is justified in contending that the decree
passed by the first appellate Court was a nullity as it was
passed in favour of the appealing parties, who had expired
prior to the appeal being heard and decided.”
38.The above observations show that the fact that the statutory
period for substitution had not expired at the time of the judgment
does not by make the adjudication valid. What is important is that
the parties in whose favour the adjudication was made were dead
when the matter was heard and decided. The decision in
Gurnam
Singh
explains the effect of a decree which is a nullity. In
paragraph 21, the Supreme Court held:
“It is a fundamental principle of law laid down by this Court
in
Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR
1954 SC 340] 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
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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
v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC
578] ,
Ashok Transport Agency v. Awadhesh Kumar [Ashok
Transport Agency
v. Awadhesh Kumar, (1998) 5 SCC 567]
and
Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC
570]"
39.The Supreme Court has thus held that where the decree is a
nullity, the defect affects the very authority of the Court and goes
to the root of the case. The Respondent has relied upon paragraph
20 of
Gurnam Singh and submitted that the legal representatives
have to seek substitution, setting aside of abatement and
condonation of delay, as may be required. There is no dispute
about this procedure where the legal representatives seek to revive
a proceeding which has abated. The Supreme Court has observed:
“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
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been revived for final hearing but not otherwise. Such was
not the case here because no such applications had been
filed.”
40.However, this observation has to be applied to the facts of
that case. There, the legal representatives were seeking revival of
an appeal which had abated. They wanted the appeal to continue
and to be heard on merits. Therefore, the procedure under Order
XXII was necessary. The present case is different. The Applicant is
not seeking to revive the reference by merely asking the Court to
ignore the abatement. The Applicant is challenging the Award on
the ground that the Award was passed when the sole claimant was
dead and no legal representative was before the Court. This
distinction is material. Where a valid proceeding has abated, the
legal representative seeking to continue that proceeding must
follow the procedure provided by law for setting aside the
abatement and condoning the delay, wherever necessary. But
where the ultimate adjudication is alleged to be a nullity, the Court
has to first examine that fundamental objection. If the Award is
found to be a nullity, the mere passage of time cannot convert it
into a valid Award. Otherwise, a proceeding which had no legal
foundation at the time of adjudication would become valid only
because the prescribed period had passed. Such consequence
cannot follow from limitation.
41.The decision in Perumon Bhagvathy Devaswom requires
consideration. The Supreme Court held that abatement takes place
by operation of law upon expiry of the prescribed period and does
not depend upon a separate order of the Court. It observed:
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“5. Having regard to the wording of Rule 4, it is clear that
when a respondent dies and an application to bring his legal
representative on record is not made, abatement takes place
on the expiry of the prescribed period of 90 days, by
operation of law. Abatement is not dependent upon any
judicial adjudication or declaration of such abatement by a
judicial order. It occurs by operation of law. But nevertheless
“abatement” requires judicial cognizance to put an end to a
case as having abated. To borrow a phrase from
Administrative Law (used with reference to void orders), an
appeal bears no brand on its forehead that it has “abated”,
nor does it close automatically on abatement. At some stage,
the court has to take note of the abatement and record the
closure of the case as having abated (where the deceased
was a sole respondent) or record that the appeal had abated
as against a particular respondent (if there are more than
one and the cause of action survives against the others).”
42.Thus, the absence of an earlier order recording abatement
does not by mean that the reference continued in a unaffected
manner. The consequence of the death of the sole claimant and
failure to bring his legal representatives on record has to be
considered according to law. The decision in
Chander is relevant.
The Full Bench held that an Award under the Land Acquisition Act
is treated as a decree and that the provisions of the Code of Civil
Procedure, including Order XXII, apply to such proceedings. In
paragraph 24, it held:
“(
d) There is no difference between the appeal arising out of
the proceedings under Section 18 and the proceedings
arising out of Section 30 for the purposes of abatement of
appeal.”
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43.Similarly, in Patel Parsottambhai Pragjibhai, the Gujarat High
Court held in paragraph 43:
“If the heirs and/or the legal representatives of any claimant
(who died during pendency of the reference proceedings)
fail to take steps in accordance with Rule 3(or Rule 4, as the
case may be) then the reference (in case of sole claimant)
qua the deceased claimant or the claim (in case where there
are more than one claimant in the reference case) would
abate (upon death of the claimant).”
44.Therefore, the death of the sole claimant had a legal
consequence and the Reference Court could not ignore the absence
of his legal representatives while proceeding to adjudicate the
claim. The submission based upon
Khazan Singh v. Union of India
does not alter this position. In Khazan Singh, the Supreme Court
held that a reference under Section 18 cannot be dismissed for
default merely because the claimant does not appear. The
Reference Court is required to answer the reference. But the facts
of that case were different. It was not a case where the sole
claimant had died before the hearing and no legal representative
had been brought on record. Therefore,
Khazan Singh cannot be
understood as laying down that a Reference Court can pass an
Award in favour of a person who was dead. Non-appearance of a
living claimant and death of the sole claimant without substitution
are two different situations. The first does not by stop the Court
from answering the reference. The second raises the question of
abatement and the very validity of the subsequent adjudication.
45.The Applicant's delay of 2958 days is substantial. If the
Applicant was challenging a valid Award on merits, the Applicant
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would have to give a satisfactory explanation for the entire delay.
The administrative movement of the file, obtaining approvals,
collection of old records, legal advice and the Covid-19 period
would then have to be examined for deciding whether sufficient
cause was made out. But that is not the only issue here. The
Applicant is challenging the Award as a nullity. The long delay may
show that the Applicant was not diligent. It may have relevance
while considering the conduct of the Applicant. But lack of
diligence cannot give legal validity to an adjudication which was a
nullity when it was made. The same reasoning applies to the
administrative steps relied upon by the Applicant. The Applicant
states that the file moved through different authorities, approvals
were obtained, the record was collected and thereafter the appeal
was prepared. These facts may not satisfactorily explain every part
of the delay. However, they cannot change the legal character of
the Award.
46.If the Award is a nullity, no amount of administrative delay
can make it a valid Award. Likewise, if the Award is otherwise
valid, administrative delay by cannot remove the requirement of
showing sufficient cause. The Respondent's reliance upon
Gurdev
Singh
does not change the result. The principle that an order
continues to operate until its invalidity is established in
appropriate proceedings is different from saying that a nullity
becomes valid merely because it was not challenged for some
years. Here, the Applicant has approached the competent appellate
Court and has raised the question of the validity of the Award. The
Court has examined that question and has found the Award to be a
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nullity. Once that finding is reached, the Award cannot be
protected only on the ground that the Applicant approached the
Court after 2958 days. There is a distinction between delay in
challenging an erroneous Award and delay in bringing before the
Court the question whether the Award had any legal existence. In
the first case, limitation operates in its normal manner and
sufficient cause is required. In the second case, the Court cannot
treat passage of time as curing the fundamental defect. This does
not mean that limitation has no importance whenever a party uses
the word “nullity”. A party cannot avoid limitation merely by
describing an erroneous judgment as void. The Court has to
examine the nature of the defect. Only where the defect is found
to affect the very authority of the Court and the adjudication is
consequently found to be a nullity, the question of limitation has to
be considered on that footing.
47.In the present case, the defect is found to be of that nature.
The sole claimant had died before the Reference Court heard and
decided the reference. His legal representatives were not brought
on record. The Reference Court nevertheless proceeded with the
matter and passed the Award in favour of the deceased claimant.
The Award is not being challenged merely because the Reference
Court committed an error in deciding the amount of
compensation. The challenge is to the very adjudication. In the
facts of the present case, such adjudication is a nullity. Once the
Award is held to be a nullity, the period of 2958 days cannot be
treated as making that Award valid. The Award did not become
valid on the expiry of the period of limitation. The passage of time
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may have consequences in case of a valid judgment, but it cannot
give jurisdiction to the Court retrospectively or cure the absence of
a party whose presence was necessary for a valid adjudication.
48.I hold that the Award passed by the Reference Court in
favour of the deceased sole claimant is a nullity. The objection to
its validity is not an objection to a mere error in the Award. It goes
to the foundation of the adjudication. Therefore, the Award cannot
be treated as a valid and final Award merely because it remained
unchallenged for several years. Consequently, the delay of 2958
days in filing the present First Appeal cannot, in the facts of this
case, be made a ground to refuse examination of the challenge to
the nullity of the Award. The Applicant is not seeking to obtain a
fresh opportunity to challenge an otherwise valid Award merely on
merits. The Applicant is bringing before the Court the fundamental
defect in the Award. The explanation given by the Applicant
regarding administrative movement of the file and the Covid-19
period may not satisfactorily explain each and every day of the
delay. However, that by does not change the conclusion. Once the
Award is found to be a nullity, the lapse of time cannot validate it.
The Applicant cannot be denied examination of the said
fundamental defect merely on the ground that the challenge was
filed after 2958 days.
49.I answer the question in favour of the Applicant. The delay
of 2958 days deserves to be condoned, not because every delayed
challenge to an illegal or erroneous Award can be entertained
without explanation, but because the Award under challenge is
found to be a nullity. A nullity cannot become a valid adjudication
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merely by passage of time. The conclusion is that the Award
passed by the Reference Court in favour of the deceased sole
claimant is a nullity. The legal representatives of the sole claimant
were not brought on record before the Reference Court proceeded
to hear and decide the reference. The Award was consequently
passed in favour of a person who was no longer alive. In these
circumstances, the Award has no legal force. The delay of 2958
days cannot prevent the Applicant from bringing this nullity before
the competent appellate Court. The delay is accordingly liable to
be condoned, and the First Appeal is required to be considered on
its merits.
50.In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
(i) Interim Application No. 11771 of 2025 is allowed.
(ii) The delay of 2958 days in filing the First Appeal is
condoned.
(iii) Interim Application No. 11771 of 2025 stands disposed
of in the above terms.
(AMIT BORKAR, J.)
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