BIMLA DEVI Vs. VIDYA DEVI

JUDGEMENT

(1.) By way of instant appeal, the appellants, who were the plaintiffs before the learned trial Court, had laid challenge to the judgment and decree, dtd. 5/8/2022, passed by learned Additional District Judge, Hamirpur, District Hamirpur, H.P., in Civil Appeal No. 45/2019, whereby the appeal filed by the plaintiffs/ appellants, was dismissed and judgment and decree passed by the learned trial Court was upheld.

(2.) The perusal of the record reveals that respondent No. 2, Bakshi Ram, has passed away on 25/6/2022, i.e. during the pendency of the appeal in the first Appellate Court, whereas, the impugned judgment and decree was passed by the learned lower Appellate Court on 5/8/2022. The appeal, therefore, has been dismissed by the learned first Appellate Court without taking note of his death, vide judgment and decree impugned before this Court in the present appeal. The impugned judgment, therefore, admittedly is against a dead person, i.e., respondent No. 2, Bakshi Ram. There is no quarrel so as to the fact that respondent No. 2 has expired well before the decision in the appeal by the learned first Appellate Court. No doubt, applications, i.e. CMPs(M) No. 832 and 833 of 2023, for bringing on record the legal representatives of respondent No. 2, Bakshi Ram, after condoning the delay in filing the application, have been filed in the present appeal, however, whether the appeal on his death stands abated, for want of consequential steps, is a question to be gone into and determined by learned first Appellate Court.

(3.) It is settled proposition of law that where a party dies in a pending suit/appeal and judgment/decree is passed in ignorance to such death, the question of substitution of his/her legal heirs and setting aside the abatement, if any, can only be considered by the Court, before whom the suit/appeal was pending at that time.