JAYARAMA REDDY & ANR. versus REVENUE DIVISIONAL OFFICER & LAND ACQUISITION OFFICER,KURNOOL

Citation: [1979] 3 S.C.R. 599 · Decided: 23-03-1979 · Supreme Court of India · Bench: P.N. SHINGAL · Disposal: Dismissed

Cited by 2 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

• 
I 
~ 
599 
JAYARAMA REDDY & ANR. 
v. 
REVENUE DIVISIONAL OFFICER & LAND ACQUISITION 
OFFICER,KURNOOL 
March 23, 1979 
[P. N. SHINGHAL AND D. A. DESAI, JJ.] 
Code of Civil Procedure; 1908-0rder XXII r. 4-Scopc of-Cross appeals 
-Legal representatives of deceased appellant brought on record-Appellan~ in 
cross·appeal fatled to bring them on record of cross appeal-CroJs appeal-If 
abates-,Vo objection raised before the High Court-.ff could be raised in 
further appeal. 
Order XXII Rule 4(1) CPC provides that where one of two or more 
defendants dies and the right to sue does not survive against the surviving 
defendant or d.efendants alone, the court, on an application 
made 
in 
that 
behalf, shall cause the legal representative of the deceased defendant to be made 
A 
B 
c 
a party and shall proceed with th~ suit. Sub-rule (3) of the Rule provides 
D 
that \vhere, within the time limited by law, no application is made under sub· 
rule (1) the suit shall abate as against the deceased defendant. 
The Ia-nd in dispute, which belonged to three persons, was acquired by the 
State Government for a public purpose and the market value was fixed at 
Rs. 2/· per square yard, 
On appeal by the claimants, it was raised to Rs. 12/-
per square yard. 
Against the order of Subordinate Judge, both the State and 
the claimants filed appeals before the High Court. 
\Vhile the aippeals were pending before the High Court, one of the claimant~ 
died. Tbe legal representatives of the deceased cla·imant were 
brought 
on 
record in the claimant's appeal, but the Government took no steps to bring the 
legal representatives of the deceased claimant on record in the appeal filed by it. 
Dismissing the claimant's appeal and allowing the Government appeal the 
High Court reduced the price of the acquired land to Rs. 4 j- per square yard. 
In appeal befor'e this Court the claimants contended that since 
the 
legal 
representatives of the deceased claimant were not brought on record within the 
period of limitation, the Government appeal abated and stood disrnissed, 
Dismissing the appeal, 
HELD: (per Shinghal, J.) I. It is not correct to say that the Gi:>vernmeot 
· appeal stood dismissed against the surviving respondents because th'e Govern· 
ment failed to bring the legal representatives of the deceased claimant on record 
within the specified time limit. The question whether the right to sue survived 
agaM1st the surviving respondents alone, was a matter for the appellate court to 
examine and decide after hearing the parties \vith regard to the 
question of 
jointness or otherwise of the de:ree and the further question whether there was 
any possibility of two contradic:ory decrees. [605 F-G] 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
600 
SUPREME COURT REPORTS 
[1979] 3 s.c.R. 
2. There is no justification for the arguro'ent that the High Court's decree 
wa.s a nullity because it was passed against a dead per~nn. A decree against a 
dead person is a nullity because it cannot be allowed to operate against his legal 
representatives when they were never b:-ought on the record to defend the case. 
It is held a nullity because it cannot be executed against his legal representatives 
who had not ha.d the full opportuuity o.f being heard in respect of it. 
If the 
respondent to an appeal dies and the appellate1 court loses sight of that develop-
ment or ignores it, it will still be permissible for the court hearing the appeal 
to bring his legal rcpresentati->es on the r€X:ord on an r'•)plication to that efi'iect 
and to consider any application for condonation of delay. It is permi:sisible for 
the appellate court to remand the case for disposal according to law to the court 
in which it was pending at the time of the death of the deceased party. [606 B-D] 
3. \Vhile the law treats such decree as a nullity qua the legal representative 
of th~ deceased defendant or respond'ent, there is nothing to prevent him from 
decidil:'!g that he wou!d not treat the decree as a nullity but would abide by it 
as it stood or as it rn&y be modified on appeal. If a legal repr'csentative adopts 
that alternative, it cannot be sa'.d that his option to b-~ governed by the decree 
is against the l<tVi' or any concept of public policy or public n1ora1ily. 
It is a 
matter entirely <1t th'e discretion of the legal representative to decide whether 
he would raise the question that the decree had beoome a nullity, at the appro-
priate time, or to abando•.1 that obviously tec

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