AMAR CHAND Vs. GRAM PANCHAYAT

JUDGEMENT

(1.) PLAINTIFF Amar Chand and Sagar Mal filed a suit for. specific performance of the contract against the Gram Panchayat, Sanchore (defendant No. 1), Moti (defendant No. 2) and the Collector, Jalore (defendant No. 3) and It was prayed that the defendant No. 1 may be directed to execute a sale -deed of the plot in question in favour of the plaintiffs and deliver its possession to them. It was, also, prayed that the defendant No. 2, who is in possession of the plot in question, has no title or Interest in the suit plot as the defendant No. 1 has already sold the plot in question in a public auction to the plaintiffs and, therefore, the plaintiffs are entitled to got the possession of the land In question and the same may be delivered to them after taking over the possession thereof from the defendant No. 2. The suit was contested by the defendants. The learned Munsif, Sanchore, by its decree and judgment dated November 29, 1971, dismissed the suit filed by the plaintiffs. Dissatisfied with the decree and judgment dated November 29, 1971, passed by the learned Munslf and Judicial Magistrate, Sanchore, the plaintiffs preferred an appeal before the learned District Judge, Jalore, which was transferred to the Court of the Civil Judge, Balotra (Camp Jalore), who, by his decree and judgment sdated November 24, 1972, dismissed the appeal filed by the plaintiffs and maintained the decree and judgment passed by the learned Munsif, Sanchore, Aggrieved with the decree and judgment passed by the learned Civil Judge, Balotra (camp Jalore), the plaintiffs preferred the present appeal before this Court. During the pendency of the appeal, the respondent No. 2 Moti died on December 19, 1977, but no application for taking the legal representatives of deceased Moti on record was moved either by the appellants or by the respondents. The appeal was, therefore, heard by the Hon'ble Single Judge of this Court. The Hon'ble Single Judge of this Court (Hon'ble Shri S.K. Mal Lodha - as He then was), by his decree and judgment dated February 20, 1986, allowed the appeal filed by the plaintiffs and decreed the suit in the following terms:

(2.) IT is contended by the learned Counsel for the legal representatives of deceased Moti Lal that Moti Lal died on December 19, 1977, and no application for bringing the legal representatives of deceased Moti on record has been filed and, therefore, the appeal stands abated and the decree and judgment passed by the learned Single Judge is mullity in the eye of law as it has been passed against a dead person. The learned Counsel for the plaintiff -appellants, on the other hand, has supported the decree and judgment passed by the Hon'ble Single Judge and submitted that deceased Moti Lal was represented by his counsel and the fact of the death of Moti Lal was not brought to the notice of the Court by him and the remedy (sic)ble with the legal representatives of the deceased defendant Moti is now, to approach the Hon'ble Supreme Court by way of filing Special Leave Petition and neither any application under Order 22 Rule 4 C.P.C. nor the review petition is maintainable and this Court becomes functuous officio after the decree and judgment have been passed and now there is no ground for reviewing the order. Alternatively, the learned Counsel for the appellants submitted that even if this Court comes to the conclusion that no decree can be passed against deceased Moti Lal and the appeal stands abated against him, then the remaining part of the decree relating, to the specific performance passed against the respondent No. 1 shall be maintained as it can be separated and that relief has not been prayed against the defendant Moti and was not connected with him. It is, also, submitted that the right to move an application for setting aside the abatement of the plaintiffs may be preserved.

(3.) THE death of respondent No. 2 Moti took place on December 19, 1977, which is not disputed by the learned Counsel for the appellants. Admittedly, no application for bringing the legal representatives of deceased Moti was made by the appellants during the pendency of the appeal and the appeal was decided by this Court on February 20, 1986, in the terms indicated above. Any decree or order passed against a dead person is nullity as no relief can be granted against a dead person. The decree and judgment passed by the Hon'ble Single Judge against deceased Moti was, therefore, nullity and deserves to be quashed and set -aside.