JIVIBEN LAVJI RAGANATH Vs. JADAVJI DEVSHANKER

JUDGEMENT

(1.) This matter arises out of the execution of a decree. The appellant is the heir of original plaintiff-decree-holder whose suit for eviction under the Saurashtra Rent Act was dismissed by the trial Court and the District Court. That original plaintiff filed a Second Appeal in the year 1965; and during the pendency of the said appeal he died on April 3 1968 But the High Court and the respondents in the High Court did not know of the death of the said appellant-plaintiff. The result was that the appeal was decided on merits and the High Court reversed the judg- ment and decree of dismissal of the suit passed by the Courts below and decreed the suit for possession. Naturally therefore present appellant took out execution proceedings for execution of that decree; and in execution proceedings the respondents judgment-debtors contended that the decree in favour of the plaintiff having been passed in Second Appeal after his death and he being the sole appellant was a nullity and therefore not executable. This contention though it did not find favour with the lower appellate Court ultimately found favour with the learned Single Judge in Second Appeal who held that the decree was a nullity. He therefore allowed the appeal and the order passed by the Executing Court re regarding issuance of warrant was set aside and the Darkhast was ordered to be dismissed. Against this judgment in the Second Appeal the Darkhastdar i. e. the heir of the original plaintiff has preferred this Letters Patent Appeal .

(2.) The short question which arises for determination in this Letters Patent Appeal is whether the decree passed in Second Appeal after the death of the sole appellant in favour of the appellant was a nullity ? There is no difficulty in answering this question.

(3.) It is well settled that when a sole plaintiff or a sole appellent in appeal dies the appeal abates. Therefore there is no proceeding before the Court in which the Court is seized of the lis between the parties. In such a case the Court lacks inherent jurisdiction to pass any order and if a decree is passed in ignorance of the death of the sole appellant the decree evidently would be a nullity. This principle must follow from the following observations of the Supreme Court reported as HIRALAL V. KALI NATH A.I.R. 1962 SUPREME COURT PAGE 199. The Supreme Court observed as under in paragraph W: The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed or some such other ground which could have the effect of the rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it