IRIAL MUTHOH Vs. JRON KHARBIHKHIEW

JUDGEMENT

(1.) HEARD Mr. S. Wahlang, learned counsel for the petitioner and Mr. R Gurung, learned counsel appearing for the respondents.

(2.) BEFORE entering into the merit of the present revision petition, Mr. S Wahlang, learned counsel for the petitioner by drawing the attention of this Court to the memo of appeal of Title Civil Appeal No.5/2005 filed in the Court of the Additional Judge, Additional District Council Court, Khasi Hills, Shillong (Annexure -1B to the present revision petition) strenuously contended that the said appeal had been filed by 19 (nineteen) persons of whom 8 (eight) persons were dead persons i.e. U Swop Nongspung (since deceased), U Miklin Kharumnuid (since deceased), U Wolet Nongspung (since deceased), U Jrui Nongbri (since deceased), U Khroi Kshiar (since deceased), Ka Riphida Kshiar (since deceased), Ka Riphida Kshiar (since deceased) and Ka Sarian Kharmylliem (since deceased). Over and above, the said appeal had been filed against the dead person i.e. Ka Kwuid Muthoh plaintiff of Civil Suit No.13/1978.

(3.) AS stated above, the memo of appeal i.e. Title Civil Appeal No.5/2005 was filed against the dead person i.e. the original plaintiff who had already been substituted by her L.R. i.e. the present petitioner vide the said order dated 18.02.1993. It is fairly settled law that decree against the dead person is nullity and the appeal cannot be filed against the dead person. The first appellate court i.e. District Council Court, Khasi Hills Shillong should have taken recourse to the Order XLI Rule 3 of the Code of Civil Procedure (for short 'CPC ') 1908 which reads as follows: -