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       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

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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 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

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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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