IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 86 of 2011. Decided on 27.09.2011. _____________________________________________________ Kaushalya Devi and others. …Appellants. -Versus- Janam Singh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. Naresh Kaul, Advocate. For respondent No. 1. : Mr. Ajay Sharma, Advocate. None for respondents No. 2 to 6. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 03.07.2010, passed by the learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 19-N/XIII-2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants-plaintiffs, namely, Mehar Singh (hereinafter referred to as “the plaintiff” for convenience sake), had filed a suit for recovery of `1,57,000/- before the learned Civil Judge (Junior Division)-I, Nurpur, District Kangra, H.P. on 17.11.2000. Learned Civil Judge partly decreed the suit on 30.08.2006. 3. Respondents-defendants (hereinafter referred to as “the defendants” for brevity sake) preferred an appeal before the learned District Judge, Kangra at Dharamshala, H.P.. Learned 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - District Judge, Kangra at Dharamshala, H.P. allowed the appeal on 03.07.2010. The appellants-plaintiffs have moved an application under order 22 Rule 4 of the Code of Civil Procedure for bringing on record the L.Rs./legal representatives of Smt. Kaulan Devi, who died on 11.04.2008 during the pendency of appeal before the learned District Judge, Kangra at Dharamshala, H.P. 4. Mr. Naresh Kaul, learned counsel for the appellants has vehemently argued that the judgment and decree passed by the learned District Judge, Kangra at Dharamshala against a dead person is a nullity. 5. Mr. Ajay Sharma, learned counsel for respondent No. 1 has supported the judgment and decree dated 03.07.2010. 6. This Court in Jagdish Versus Ram Karan and others, 2002(1) Current Law Journal (H.P.) 232 has held that whether there was sufficient cause for setting aside the abatement or whether the legal representatives of the deceased are to be brought on record or not in relation to a suit or appeal at the first instance, is to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and the abatement took place. Consequently, in view of this settled position, there is no alternative but to set aside the judgment and decree dated 03.07.2010 and to remand the case to the lower appellate Court. 7. Accordingly, in view of the observations and discussions made hereinabove, the impugned judgment and decree dated 03.07.2010 are set aside and Civil Appeal No. 19- N/XIII-2007 is remanded back to the learned District Judge, - 3 - Kangra at Dharamshala, H.P.. The learned District Judge, Kangra at Dharamshala, H.P. after restoring the appeal to its original number and date, permit the parties to take such steps as are permissible to them under law. The appeal is disposed of in terms of above order. Since the matter is old, to avoid the delay, the first appellate Court is directed to dispose of the same as expeditiously as possible, preferably within a period of three months. 8. The parties through their learned counsel are directed to appear before the first appellate Court on 28th October, 2011. There will, however, be no order as to costs. The pending application(s), if any, also stands disposed of. (Rajiv Sharma) Judge September 27, 2011. (bhupender) - 4 -