CHANDANBHAI CHHOTABHAI PATEL Vs. BABUBHAI MARGHABHAI

JUDGEMENT

(1.) The applicants are the heirs and legal representatives of deceased, Chandubhai Chhotabhai Patel, who was the respondent No. 1 in Special Civil Application No. 123/ 85. The said Special Civil Application No. 123/85 was heard and judgment was delivered in it on 17-8-1993. Respondent No. 1-Chandulal Chhotabhai Patel had died on 10-3-1989 at village Kanisa, Taluka Khambhat. Thus, when the aforesaid judgment came to be delivered, disposing of the Special Civil Application No. 123 of 1985, the respondent No. 1-Chandulal Chhotabhai Patel, was already dead. The present Misc. Civil Application is filed for reviewing the said order dated 17th August 1993 passed in Special Civil Application No. 123 of 1985 and quashing it on the ground that the respondent No. 1 had already died when the petition was heard and disposed of.

(2.) xxx xxx xxx.

(3.) Ms. V. P. Shah, learned Advocate appearing for the applicants, submitted that in view of the legal position as laid down in the case of Jadavji Devshanker v. Jiviben Lavji Ragnath, reported in 18 G.L.R. page 504, this application deserves to be allowed. In the above case of Jadavji Devshanker (supra), it is held that decree passed in favour of a dead man is a nullity. If it appears that the court could not have passed the decree, the executing court can examine the question. The said decision was taken at its ligical conclusion by preferring Letters Patent Appeal and the Division Bench consisting of S. Obul Reddy, C. J. and Mr. Justice D. P. Desai (as they were then) in 18 G.L.R. page 883, upheld the aforesaid decision of the learned single Judge holding, inter alia, that when a sole plaintiff or a sole appellant in appeal dies, the appeal abates. Therefore, there is no proceeding in 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 nullity. It was been further held by the Division Bench that there is no principle to distinguish the case of a decree in favour of a dead person from the case of a decree against a dead person. The real principle is whether the Court had inherent jurisdiction to pass a decree in such a case. It lacked inherent jurisdiction because it had no seizing of the case as the sole appellant was dead; and no application for bringing heirs on record was made within the period of limitation. Therefore, in a case where a single or sole appellant died during the pendency of the appeal and the appeal came to be heard and a decree came to be passed in his favour, the said decree is a nullity, inasmuch as the Appellant Court was not seized of the case on account of the death of the sole appellant and lacked inherent jurisdiction to pass any decree in such an appeal. In the present case, the situation is converse, namely the respondent No. 1 had died then the matter was heard and decided. It could not have been decided in absence of any party, who was admittedly no more at the time of hearing and decision.