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

Citation: [2017] 3 S.C.R. 901 · Decided: 27-04-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2017] 3 S.C.R. 901 
GURNAM SINGH (D) THR. LRS. 
v. 
GURBACHAN KAUR (D) BY LRS. & ORS. 
(Civil Appeal No. 5671 of 2017) 
A 
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 
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] 
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 & 
901 
F 
G 
H 
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 stat
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