RAMJI LAL & OTHERS Vs. HIRA AND OTHERS

JUDGEMENT

(1.) This is an application under Order 22, Rule 4 of the Civil Procedure Code filed by the legal representatives of Hira respondent (since deceased) in R.S.A. No. 174 of 1969 decided on 6th August, 1980. It is alleged in the application that Hira was the sole contesting respondent, who died on October, 1972 in Ellenabad, District Sirsa; that the appellants did not bring the legal representatives of the said respondent on record as parties upto the final hearing of the appeal and as a result the appeal automatically abated. It is further alleged in the application that at the time of the appeal on 6th August, 1980, the counsel for Hira respondent did not know about the factum of the death of Hira nor did the counsel for the appellants bring it to the notice of the Court and as a result the appeal was heard and decided without the notice of death of Hira. It is also alleged that after the decision of the appeal the respondent's counsel sent information about the decision of the case to Parkash Chander (Respondent Hira's son), who had accompanied his father at the time of engaging him as a counsel and that in response to the letter sent by the counsel, Parkash Chander came to Chandigarh and informed the counsel that his year 1972, and that he did not receive any earlier letter regarding the hearing of father Hera had died in the appeal. It is in these circumstances that the present application has been filed for recalling the order dated 6th August, 1980, and declaring the appeal as abated in toto.

(2.) Admittedly, the factum of death of Hira respondent in the year 1972, is not denied by the counsel for the appellants, but the counsel stated that the appellant came to know about the death of Hira only after the filing of the present application and, therefore, appeal cannot be dismissed as having abated. Since the appeal was allowed against a dead person, the order dated 6th August, 1980, cannot be sustained and is to be set aside as no decree can be passed against a dead person. The similar matter arose in Mst. Dhani v. Gian Chand and others, 1973 PunLJ 451, wherein it was observed by their Lordships of the Division Bench as under :-

(3.) For the reasons recorded this application is allowed and the judgment and decree of this Court dated 6th, August, 1980, in R.S.A. No. 174 of 1969 is recalled and the appeal is dismissed as abated, but there will be no order as to costs.