BHAGIRATH Vs. SARAN DASS AND ORS.

JUDGEMENT

(1.) Challenge herein is to the judgment and decree dated 14th August, 2014, passed by learned Additional District Judge (II), Mandi, Camp at Sarkaghat, in Civil Appeal No. 26 of 2011/25 of 2014, whereby the appeal stands dismissed and the judgment and decree passed by learned Civil Judge (Senior Division), Sarkaghat in Case No. 113 of 2004, upheld. It is worthwhile to mention that one of the appellants, i.e., appellant No. 2 Prabh Dyal has expired on 22nd December, 2012 during the pendency of the appeal in the lower appellate Court. An application under Order 22 Rule 4 of the Code of Civil Procedure was filed for substitution of his legal representatives on 4th January, 2013. On behalf of the respondents no reply to the application was intended to be filed, as per the statement of learned Counsel recorded on 21st March, 2013. Learned lower appellate Court did not pass any order qua substitution of the proposed legal representatives on that day, may be for want of Service of the proposed legal representatives in the application. Therefore, only the notice of the application was issued to them on that day. The proposed legal representatives could be served in the application for 19th June, 2013. They did put in appearance through Counsel, but without passing any order qua their substitution as respondents in the appeal, appellants were directed to file amended memo of parties. Amended memo of parties was filed on 24th September, 2013 and the same is on record. The application seems to have escaped the notice of learned lower appellate Court, as it is for this reason the same could not be disposed of. As a result thereof the legal representatives of deceased appellant No. 2 could also not be substituted. In the cause title of the judgment under challenge also instead of the names of proposed legal representatives, name of deceased appellant Prabh Dyal has been reflected.

(2.) True it is that the application for substitution of legal representatives of deceased appellant Prabh Dyal was filed in the lower appellate Court. Not only this, but the proposed legal representatives were duly served in the said application and had also put in appearance. There is, however, no order qua their substitution as such. The judgment is, there-fore, against a dead person, i.e., deceased appellant Prabh Dyal. In view of the settled legal proposition, the judgment against a dead person is nullity and has to be quashed and set aside. Therefore, the judgment and decree under challenge in the present appeal is hereby quashed and set aside. The case, however, is remanded to learned lower appellate Court for fresh disposal in accordance with law and after taking a decision on the pending application filed for substitution of the legal representatives of deceased appellant Prabh Dyal. The suit being of the year 2004, it is expected that learned lower appellate Court shall decide the appeal at the earliest preferably on or before quarter ending by 30th September, 2015. The parties, through learned Counsel representing them, are directed to appear in the lower appellate Court on 13th July, 2015. The record be sent to learned lower appellate Court so as to reach there well before the date fixed. The appeal stands disposed of, so also the pending application(s), if any.