^^. ^^^.. o. HIGH COURT OF CHHATTISGARH. BILASPUR SecondADDeal No.94 of 2008 APPELLANTS: 1. Vishram Singh S/o Kosva Gond, aged about50years, VillageBargawan 2. Ghhotka S/o Bhakose aged about 65 years,VillageMadai 3. Puransingh S/o Manrakhan SinghGpnd aged about 55 years,Village Silpahri 4. Shyambai W/o Puransingh Gond aged about 53 years Vijlage SJIpahri 5. Roopsingh S/o Vishram Singh Gond aged about 28 yearsVillage Silpahri 6. Kumansingh S/o Vishram Singh Gond aged about 25 years VillageSilpahri 7. Phoolabai W/o Vishram Singh Gond aged abbut 50 years Vjllage Baragawn All belong to Police Station Marwahi, Tahsil Marwahi, District Bilaspur C.G. (All aredefendants) 3. Smt. Phu^?;r widow bf Bhangi Gond Dead-Def-ndantNo.3 Through LRs 8.a. Samaratiya Ba W/o Late Punwar Singh, aged about 45 years, R/o Village Dhangawan, post Sadhwani, Tahsil Pendra Road, DistrictBjlaspurC.G; 8.b. Ram Bai W/o Ram Dayal, aged abbut 4 years.Village Jilda, post Kodgar, Tahsil Pendra Road, District Bilaspur C.G. 8.C. Ramayan Singh, aged about 35 years, R/o village Naka, Bansithal, Tahsil Marwahi, District BiIaspUF C.G. 8.d. Chandra Kunwar W/o Bal Singh, aged about 32 years, Deoraj, Post Newsa, Tahsil Pendra Road, District Bilaspur C.G/'''1 .' ^ !' .1'1::1';'/1'/,''1.;,. 8.e. Humawati D/o Late Sudhin Singh Marko, agedabout 30 years, R/p Village and post Silpahari, Tahsil Pendra Road, District Bilaspur C.G. 8.f. Ram Kunwar W/o Bundel Singh, aged about 28 years, R/o Village and post Silpahari, Tahsil Pendra Road, District Bilaspur C.G. ; 't .r;"'.;. ••"'"- ^ •i lt,/ B ^x-t '^^ •T^^^^' RESPONDENTS: Versus 1. Gaya Singh S/o Mandal Gond aged about 33 years, 2. Nan Bai W/o Mandal Singh Gond, aged about 65 years. Both are R/o Village Silpahri Poliee Station Pendra Tahsil Pendra Road District Bilaspur C.G. (Respondent No.1 &2are plaintiffs) 3. State of C.G. ThrQugh the Collector, Bilaspur (C.G.) (DefendantNo.10) {Second appeal under Section lOOofthe Code ofCivil Procedure, 1908} Present Mr, Rakesh Pandey, counsel forthe appellants. Mr. Dhirendra Mishra, counsel for respondents No.1 & 2. Mr. U.K. SinghChandel, Panel Lawyer for the State/respondentNo.3. Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORALORDER (10-9-2010) .1 1. I have heard learned counsel for the parties. 2. During the courseof hearing, learned counsel for the appellants submits that Phuljhar (defendantNo.3) died during the pendency of first appeal, on 22-5-2005 and Sonkunwar (defendant No.2) died on 14-1-2008. Learnedcounsel further submits that he has filed death certjfjcates of both fhe persons who were respondents before the lower appellate Court, along with his memoof appeal. He also submits that earlier, he has not brought the legal representatives of Phuljhar on record and has fjled application before this Court for bringing the legal representatives of Phuljhar on record which was subsequently allowed by this Court. 3. Record ofthe lowerappellate Court reveals thatfirst appeal was filed by respondents No.1 & 2 herein on 13-4-2005, it was finally heard.on 4-1- 2007 arid was decided on 11-1-2008. As per the death certificate of Sonkunwar (defendant No.2), she died on 14-1-2008 after losing the case before the lowerappellate Court and after the judgment & decree of thelowerappellate Court. Therefore, thejudgment &decree passed by ,/s^\. y:^) '%^^^^ ^-•^^•. the lower appellate Court relating to Sonkunwar will not abate in accordance with Order 22 Rule 6 ofthe C.P.C. 4. As regards the question of bringing legal representatives of Phuljhar (defendant No.3) pr maintainability of this second appeal in the light of the death of Phuljhar during the pendency of first appeal, as per the death certificate of Phuljhar, she died on 22-5-2005. First appeal was filed against ten respondents including Phuljhar (respondent No.3 in first appeal), but at the time of issuance of notice of first appegl, process paid by the appellants therein i.e. respondents No.1 & 2 herein reveals that it was paid for Phulkunwar, widow of Bhangi Gond and hot for Phuljhar, widow of Bhangi Gond, Despite this, notice issued to Phulkunwar returned back un-served before the lower appellate Court with endorsement dated 29-3-2007 thatshehas died. However, respondents No.1 & 2 herein have not applied before thelower appellate Court for bringing the legal representatives of deceased Phuljhar or Phulkunwar on record. Learned lower appellate Court has also not considered-orf probably, has not taken notice ofthis fact and passed judgment & decre© againstthe dead person i.e.respondentNo.3 Phuljhar. 5. Atthe time of filing the instantsecond appeal, the appellants herein have filed applicatiQn for bringing the legal representatives of deceased on record which was allowed vide order dated 18-8-2008. 6. The lower appellate Court was not competent to decree appeal against dead person. It is required to cause legal representatives of deceased Phuljhar be made party in aceordance with Order 22 Rule 4 read with Ruje 11 ofthe C.P.C. But respondents No.1 & 2 herein have npt filed' any application for impleading the legal representatives of Phuljhar as party before the lower appellate Court, the lower appellate Court has failed to take notice of the death of Phuljhar and has passed-decree against the dead person. 7. Therefore, the judgment & decree passed by the lower appellate Court are not sustainable under the law without impleadjng the iegal representatives of deceased Phuljhar as party. Consequently, the appeal is allowed and the judgment &decreedated 11-1-2008 passed by the Additional District Judge (Fast Track Court), Pendra Road are, hereby setaside. ^: ': !.T. ^ 't^ &'•.-^"t' .i^._J^ ?^' Soma 8. The case is remitted back to the Court of Additional District Judge (Fast Track Court), Pendra Road for taking appropriate steps on account of the death of Phuljhar during the pendency of first appeal before it and atter providing opportunity of hearing to the parties it shall pass judgment & decree afresh. 9. Parties are directed to present before the Court of Additional District Judge (Fast Track Court), Pendra Road on 19-10-2010 forfurther progressofthecase.Partiesshallbeartheirowncostsofthisappeal. lO.Advocate fees as per schedule. Sd/- T.P. Sharma Judge '•• ^ ./l.^,(.'••'.,".;•••". }. !t ', :,;T, .(' ' '•.(•''•'.. •:"'"-