GURNAM SINGH (D) THR. LRS.versusGURBACHAN KAUR (D) BY LRS. & ORS.

                         [2017] 3 S.C.R. 901


                 GURNAM SINGH (D) THR. LRS.                             A
                                  v.
            GURBACHAN KAUR (D) BY LRS. & ORS.
                   (Civil Appeal No. 5671 of 2017)
                           APRIL 27, 2017                                B
   [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
         Code of Civil Procedure, 1908 - Or. XXIJ, rr. 3 and 4 -
 Application under - On facts, appellant and two respondents expired
 during the pendency of the second appeal - No steps taken by any C
 of the legal representatives of the deceased on whom the right to··
 sue devolved, to file an application. u/Or. XX!!, rr. 3 and 4 for bringing
  their names on record to enable them to continue the !is - However,
  the High Court decreed the suit for specific performance of contract
 filed by the plaintiff-respondent against the appellant in relation to
  the suit land - On appeal, held: Decree passed by a court for or D
  against a dead person is a nulli~v .:._ Thus, the impugned judgment is
  a nullity because it was passed by the High Court in favour of and
  also against the dead persons - Non-compliance of rr. o.§ (2) and
. 4(3) of Or. XX!! resulted in dismissal of second appeal as abated on
  the expiry of 90 days - High Court ceased to have jurisdiction to E
  decide the second appeal which stood already dismissed beyond
  the statutory period of 90 days and there was no pending appeal
  on and thereafter - Further, no applications were filed io revive the
  appeal for hearing - Thus, the judgment is set aside.
       Allowing the appeal, the Court
                                                                         F
       HELD: 1.1 It is a settled principle of law that the decree
 passed by a Court for or against a dead person is a "nullity". The
 impugned judgment is a nullity because it was passed by the High
 Court in favour of and also against the dead persons. [Paras 16,
 22][906-A-B; 907-lI]
                                                                         G
       Kif-an Singh & Ors. v. Chaman Paswan & Ors. AIR
       1954 SC 340 : [1955] SCR 117; N. Jayaram Reddy &
       Anr. v. Revenue Divisional Officer & Land Acquisition
       Officer, Kurnool (1979) 3 SCC 578 : [1979] 3 SCR
       599; Ashok Tramport Agency v. Awadhesh Kumar &
                                                                         H
                                  901
902          SUPREME COURT REPORTS                      [2017] 3 S.C.R.


A         Anr. [1998] 5 SCC 567; Amba Bai & Ors. v. Gopal &
          Ors. (2001) 5 SCC 570 - relied on.
         1.2 On the death of a party to the appeal, if no application is
   made by the party concerned to the appeal or by the legal
   representatives of the deceased on whom the right to sue has
B devolved for substitution of their names in place of the deceased
   party within 90 days from the date of death of the party, such
   appeal abates automatically on expiry of 90 days from t!i~ date of
   death of the party. In other words, on 91" day, there is no appeal
   pending before the Court. It is "dismissed as abated". [Para
C. 18][906-D-E]           .
         1.3 Order XXII Rule 3(2) applies in the case of the death of
  plaintiff/appellant and Order XXII Rule 4(3) which applies in the
  case of defendant/respondent provides the c·onsequences for not
  filing the application for substitution of legal representatives by
  the parties concerned within the time prescribed. In the instant
D case, Order XXII, r. 3(2), 4(3) came in operation because the
  appellant and the two respondents expired during the pendency
  of second appeal and no ;teps were taken by any of the legal
  representatives representing the dead persons and on whom the
  right to sue had devolved to file an application under Order XXII
E Rules 3 and 4 CPC for bringing their names on record in place of
  the dead persons to enable them to continue the lis. The legal
  effect of the non-compliance of Rules 3(2) and 4(3) of Order XXII,
  therefore, came into operation resulting in dismissal of second
  appeal as abated on the expiry of 90 days from 10.05.1994, i.e.,
  on 10.08.1994. The High Court, therefore, ceased to have
F jurisdiction to decide the second appeal which stood already
  dismissed on 10.08.1994. Indeed, there was no pending appeal
  on and after 10.08.1994. [Paras 17, 19, 20][906-E-F; 907-A-C]
         1.4 The appeal.could be revived for hearing only when firstly,
  the proposed legal representatives of the deceased persons had
G filed an application for substitution of their names and secondly,·
  they had applied for setting aside of the abatement under Order
  XXII Rule 9 and making out therein a sufficient cause for setting
  aside of an abatement and lastly, had filed an application under
  Section 5 of the Limitation Act seeking condonation of delay in
H filing the substitution..application under Order XXII Rules 3 and
  GURNAM SINGH (D) THR. LRS. v. GURBACHAN KAUR (D)                               903
                      BYLRS.

 4 beyond the statutory period of 90 days. If these applications                 A
 had been allowed by the High Court, the second appeal c9uld
 have been revived for final hearing but not otherwise. Such was
 not the case here because no such applications had been filed.
 [Para 21][907-C-E]
        1.5 The appellants are the legal representatives of                      B
  defendant Nos. 2 and 4 on whom the right to sue has devolved.
  They had, therefore, right to question the legality of the impugned
  order inter alia on the ground of it being a nullity. Such objection,
  could be raised in appeal or even in execution proceedings arising
  out of such decree. The objection, therefore, is upheld. The
· impugned judgment/decree is set aside. [Para 23][908-A-Bj                      C
                          Case Law Reference
          [1955] SCR 117            relied on                 Para 15
          [1979] 3 SCR 599          relied on                 Para22
         (1998) 5 sec 567           relied on                 Para 22            D
         (2001) 5 sec 570           relied on                 Para 22
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5671
 of2017.
      From the Order dated 18.05.20 I 0 of the High Co,urt of Punjab             E
 and Haryana at Chandigarh in RSA No. 1148 of 1985.
       J;3asava Prabhu S. Patil, Sr. Adv., Sanjay Sarin, Vivek Salathia,
 Ms. Pratikasha Shanna and Dinkar Kalra, Advs. for the Appellants.
        Subhasish Bhowmick, Adv. for the Respondents.
        The Judgment of the Court was delivered by                               F
        ABHAY MANOHAR SAPRE, J. 1. Leave granted.
         2. This appeal is filed by the legal representatives of defendant
 Nos. 2 and 4 against the final judgment and order <:lated 18.05.2012
 passed by the High Court of Punjab and Haryana at Chandigarh in Civil
                                                ~~

  Regular Second Appeal No. 1148of1985 whereby the High Court allowed            G
 .the plaintiff's appeal, set aside the concurrent findings of the Trial Court
  and the FirstAppellate Court and decreed the plaintiffs suit for specific
  performance of contract against the defendants in relation to the suit
  land.
        3. The facts of tpe cast< lit'. in a narrow compass so also the          H
. 904            SUPREME COURT REPORTS                             [2017] 3 S.C.R.


  A controversy involved in the appeal is short. However, only relevant facts
    to appreciate the question involved are mentioned infra.
            4. One Surjan Singh(defendant No. I) was the original owner of
     the suit land bearing Khasra Nos. 1806, 1807, 1808 and 1809 (new numbers
     91R/2/3, 12, 9, 10, 11, 90R/6 and 15) measuring 43 Kanals 4 Marlas
   B situated in village Rasulpur, Tahsil/DistrictAmritsar (hereinafter referred
     to as "the suit land").
               5. On 06.05.1974, Surjan Singh entered into a contract to sell the
        suit land to one Gurbachan Kaur(plaintiff) for Rs. I 0,000/- per Killa. In
        terms of the contract, the sale deed of the suit land was to be executed
   c    by Surjan Singh in favour ofGurbachan Kaur on or before 28.01.1975.
            6. On 03.09.1974, Surjan Singh sold the suit land to Joginder Singh,
     Mehal Singh and Gurnam Singh. This led to filing of the civil suit by
     Gurbachan Kaur against Surjan Singh(defendant No. I) and suesequent
     purchasers, namely, Joginder Singh(defendant No.2), Mehal
   D Singh(defendant No.3) and Gurnam Singh(defendant No.4). The suit
     was for specific performance of contract dated 06.05.1974 filed by
     Gurbachan Kaur against the aforementioned 4 defendants in relation to
     the suit land. The defendants contested the suit. Parties went on trial.
               7. By judgment/decree dated 29.08.1980, the Trial Court dismissed
   E    the suit insofar as it pertained to grant of relief of specific performance
        of contract was concerned but decreed the suit by granting money decree
        for Rs. 7000/- in plaintiff's favour. In this way, the suit was partly decreed
        and partly dismissed.
                8. Felt aggrieved, the plaintiff-Gurbachan Kaur alone filed the
   F    first appeal in the Court of District Judge. So far as the defendants are
        concerned, they did not file any appeal against the money decree suffered
        by them. By judgment/decree dated. 06.11.1984, the first Appellate Court
        dismissed the appeal filed by the plaintiff and affirmed the judgment/
        decree of the Trial Court.
   G          9. Felt aggrieved, the plaintiff-Gurbachan Kaur carried the matter
        further and file~ Second Appeal before the High Court. The appeal.was
        admitted for final hearing on substantial questions oflaw framed by the
        High Court.
              10. During pendency of the second appeal, Gurbachan Kaur-
        appellant(plaintiff) died on l 0.05.1994. Likewise, Joginder Singh
   H
   GURNAM SINGH (D) THR. LRS. v. GURBACHAN KAUR (D)                               905
         BY LRS. [ABHAY MANOHAR SAPRE, J.]

 (respondent- defendant No.2) died on 06.12.2000 and lastly Gumam                 A
 Singh(respondent-defendant No.4) also died on 19.04.2002. Despite
 bringing to the notice of the High Court about the death of the appellant
 and the two respondents, no steps were taken by anyone to bring their
 legal representatives on record to enable them to prosecute the /is involved
 in the appeal.
                                                                                  B
         11. On 18.05.2010, the High Court allowed the second appeal, set
' aside the judgment/decree of the two Courts below and decreed the
  plaintiff's suit for specific performance of the contract against the
  defendants in relation to the suit land.
   .   12. It is against this judgment of the High Court, the legal               c
 representatives of defendant No.2(Late Joginder Singh) and defendant
 No.4(Late Gurnam Singh) filed the.present appeal by way of special
 leave petition and sought permission to question its legality and
 correctness.
   _    13. Heard Mr. Basava Prabhu S. Patil, learned senior counsel for          D
 -the appe!lants and Mr. Subhasish Bhowmick, learned counsel for the
  respondents.
         14. The short question, which arises for consideration in this appeal,
  is whether the impugned order allowing the plaintiff's second appeal is
  legally sustainable in law? In other words, the question is whether the         E
  High Court had the jurisdiction to decide the second appeal when the
  appellant and 2 respondents had expired during the pendency of appeal
  and their'legal representatives were not brought on record?
          15. In a leading case of this Court in Kiran Singh & Others vs.
  Chaman Paswan & Others (AIR 1954 SC 340), the learned Judge F
  Venkatarama Ayyar speaking for the Bench in his distinctive style of
  writing laid down: the following principle of law being fundamental in ·
  nature:
          "It is a fundamental principle that a decree passed by a
         Court without jurisdiction is a nullity, and that its invalidity         G
         could be set up whenever and wherever it is sought to be
         enforced or relied upon, even at the stage of execution and
         even in collateral proceedings. A defect of jurisdiction,
         whether it is pecuniary or territorial, or whethei: it._ is in
         respect of the subject-matter of the action, strikes at the
                                                                                  H
906               SUPREME COURT REPORTS                         [2017] 3 S.C.R.



A            very authority of the Court to pass any decree, and such a
             defect cannot be cured even by consent of parties."
              16. The question, therefore, is whether the impugned judgment/
       order is a nullity because it was passed by the High Court in favour of
       and also against the dead persons. In our considered opinion, it is a
B      nullity. The reasons are not far to seek.
               17. It is not in dispute that the appellant and the two resp0ndents
       expired during the pendency of the second appeal. It is also not in
       dispute that no steps were taken by any of the legal representatives
       representing the dead persons aqd on whom the right to sue had aevolved
c      to file an application under Order 22 Rules 3 and 4 of the Code of Civil
       Procedure,1908 (for short, 'the Code') for bringing theirnames on record
       ~n place of the dead persons to enable them to continue the !is.

              18. The law on the point is well settled. On the death of a party to
       the appeal, if no application is made by the party concerned to the appeal
D      or by the legal representatives of the deceased on whom the right to sue
       has devolved for substitution of their names in place of the deceased
       party within ,90 days from the date of death of the party, such appeal
       abates automatically on expiry of90 days from the date ofdeath of the
             In
       party. other words, on 91 '' day, there is no appeal pending before the
       Court. It is "dismissed as abated".
 E
               19. Order 22 Rule 3(2) which applies in the case of the death of
      . plaintif£'appellant and Order 22 Rule 4(3) which applies in the case of
        defendant/respondent provides .the consequences for not filing the
        application for substitution of legal representatives by the parties
        concerned within the time prescribed. These provisions read as under:-
 F
                                 Order 22 Rule 3(2)
                "Where within the time limited by law no application is
              made under sub-rule (1) the suit shall abate so far as the
              deceased plaintiff is concerned, and, on the application of
              the defendant, the Court may award to hlm the costs which
 G
              he may have incurred in defending the suit, to be recovered
              from the estate of the deceased plaintiff."
                               · Order 22 Rule 4(3)
              "Where within the time limited by law no application is made
H
 GURNAM SINGH (D) THR. LRS. v. GURBACHAN KAUR (D)                           907
     . BY LRS. [ABHAY MANOHAR SAPRE, J.]

under sub-rule (I), the suit shall abate as against the deceased            A
defendant."                                      '
       20. In the case at hand, both the aforementioned provisions came
in operation because the appellant and the two respondents expired during
the pendency of second appeal and no application was filed to bring
their legal representatives on record. As held above, the legal effect of B
the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came
into operation resulting in dismissal of second appeal as abated on the
expiryof90 days from 10.05.1994, i.e., on 10.08.1994. The High Court,
therefore, ceased to have jurisdiction to decide the second appeal which
stood already dismissed on 10.08.1994. Indeed, there was no per.ding C
 appeal on and after l 0.08.1994.
       21. In our considered view, the appeal could be revived for hearing
only when firstly, the proposed legal representatives of the deceased
persons had filed an application for substitution of their names and
secondly, they had applied for setting aside of the abatement under Order
22 Rule 9 of the Code and making out therein a sufficient cause for D
setting aside of an abatement and lastly, had filed an application under
Section 5 of the Limitation Act seeking condonation of delay in filing the
substitution application under Order 22 Rules 3 and 4 of the Code beyond
the statutory period of 90 days. If these applications had been allowed
by the High Court, the second appeal could have been revived for final E
hearing but not otherwise. Such was not the case here because no such
applications had been filed.
         22. It is a fundamental principle of law laid down by this Court in
  Kiran Singh's case (supra) that a decree passed by the Court, ifit is a
  nullity, its validity can be questioned in any proceeding including in F
  execution proceedings or even in collateral proceedings whenever sµch
  decree is sought to be enforced by the decree holder. The reason is that
  the defect of this nature affects the very authority of the Court in passing
  such decree and goes to the root of the case. This principle, in our
  considered opinion, squarely applies to this case because it is a settled
. principle of law that the decree passed by a Court for or against a .dead G
  person is a "nullity" (See-N. Jayaram Reddy & Anr. Vs. Revenue
  Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3
  sec 578, Ashok Transport Agency vs. Awadhesh Kumar & Anr.,
  (1998) 5 sec 567 and Aruba Bai & Ors. Vs. Gopal & Ors., (2001) 5
  sec 570).                                                                    H
908                SUPREME COURT REPORTS                     [2017] 3 S.C.R.


A         23. The appellants are the legal representatives of defendant Nos.
   2 and 4 on whom the right to sue has devolved. They had, therefore,
   right to question the legality of the impugned order inter alia on the
   ground of it being a nullity. Such objection, in our opinion, could be
   raised in appeal or even in execution proceedings arising out of such
B decree. In our view, the objection, therefore, deserves to be upheld. It
 . is, accordingly, upheld.
             24. In the light of foregoing discussion, we allow the appeal and
      set aside the impugned judgment/decree.


      Nidhi Jain                                                 Appeal allowed.