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)

JUDGMENT

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

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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

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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

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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

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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

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 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

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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

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

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 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

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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

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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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