OM PRAKASH MARWAHA (D) THR. LRS. & ORS. versus JAGDISH LAL MARWAHA (D) THR. LRS.

Citation: [2008] 16 S.C.R. 712 · Decided: 26-11-2008 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2008] 16 S.C.R. 712 
· OMPRAKASH MARWAHA·(D) THR. LRS. & ORS. 
v. 
JAGDISH LAL MARWAHA (D) THR. LRS. 
(Civil Appeal No. 6850-6851 of 2008) 
.NOVEMBER 26, 2006 
[ALTAMAS KABIR AND MARKANDEY KAT JU, JJ.] 
,, 
Code of Civil Procedure, 1f}08: 0. XU r. 3 -Amendment 
of memorandum - Decree in first appeal drawn up against 
C original defendant who had expired even though application 
for substitution of legal heirs of original defendant was filed 
and same remained pending - Decree upheld by High Court 
in second appeal but its execution could not be carried out -
Application for rectification of decree drawn up - Allowed by 
D High Court and Registry directed to draw up the decree in 
second appeal mentioning names of parties of appeal when 
it was finally disposed of -
Applications by legal 
representatives .of plaintiff for bringing them on record also 
allowed - Directions by High Court to amend the memo of 
E · parties - Interference with - Held: Not called for - Act of court 
should do no harm to litigant - Heirs of plaintiffs and 
defendants were duly represented before High Court in 
second appeal - Technicality prevented heirs of plaintiff from 
enjoying benefits of the decree passed in their favour- 0.22, 
F r.3 rlw s.151. 
Maxims: Actus curie neminem gravabit - Act of Court 
should do no harm to a litigant - Applicability of. 
The plaintiff-JL, predecessor in interest of 
G respondents filed suit for vacant and peaceful 
possession of the property against the original 
defendant. The suit was dismissed. JL filed first appeal. 
During pendency, the original defendant died. The 
plaintiff filed application for substitution of legal heir_s but 
H 
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.. 
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OM PRAKASH MARWAHA (D),THR. LRS. & ORS. v. JAGDISH 713 
LAL MARWAHA (D) THR. LRS. 
>-
it remained pending. The heirs of the original defendant A 
were not brought on record and the decree was passed· 
against the original defendant. The second appeal was 
also dismissed. However, the decree passed by first 
appeUate court and upheld by High Court in second 
appeal could not be executed. The legal heirs of plaintiff-
B 
.... 
decree holder in the second appeal then filed application 
for rectification of the judgment and decree drawn up and 
'T 
the same was allowed. The Registry of High Court was 
directed to draw up the decree in terms of second appeal 
mentioning the names of the parties of the appeal at the c 
time the same was finally disposed of. Meanwhile, 
applications were also filed by legal representatives of JL 
for bringing them on record as legal representatives of 
deceased-plaintiff and for condonation of delay in making . 
the application. High Court allowed the applications and 
D 
directed the memo of parties to be amended accordingly. 
~ 
Hence, the present appeals. 
y 
Dismissing the appeals, the Court 
HELD : 1.1 The original defendant had died during 
E 
the pendency of the First Appeal, bu,t it is equally 
important that an application for substitution of his legal 
heirs -had been made though no order has been passed 
thereupon and a decree was consequently drawn up 
• 
against the original defendant who had already expired. 
F 
+ 
The legal heirs of the plaintiff had brought the fact of the 
death of the sole defendant to the notice of the Court, but 
it is through sheer inadvertence thaUhe substitution was 
not effected. However, in the Second Appeal, the legal 
representatives of the original plaintiff were made parties G 
by the heirs of the deceased defe·ndant, who ·are the 
appellants. The heirs of both the plaintiffs and the 
defendants were, therefore, duly represented before the 
High Court in the Second Appeal and it is essentially a 
technicality which prevented the heirs of the plaintiff from 
H 
714 
SUPREME COURT REPORTS 
[2008] 16 S.C.R. 
A enjoying the benefits of the ~ecree passed in favour of 
th_~ plaintiff. This .is a fit c.as~ where applying the maxim . 
actus curiae neminem gravabit-an act of Court should do . 
no. h~um t~ a litigant, interference with the orders passed 
by, the High.Court is not called for. [Paras 13 and 14] [718-
B E-H; 719-A-B] 
. 
. 
c 
Jang Singh vs Brij Lal AIR 1966 SC 1631 and N. 
Suriyakala vs A Mohahdoss 2007 (9) SCC 1960, relied on. 
Case Law Reference: 
AIR 1S6fSC 1631 
2oot (9) sec 1960 
Relied on 
Relied on 
Para 11 
Para 11 
CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos. 
D 6850-6851_ of 2008. -
· From the final Judgment and Order dated 23.1.2004 of the 
High Court of Delhi 

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