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 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

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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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