Case: Gurnam Singh (D) Thr. Lrs  Vs. Gurbachan Kaur (D) By Lrs

3. The facts of the case lie in a narrow compass so also the controversy involved in the appeal is short. However, only relevant facts to appreciate the question involved are mentioned infra.4. One Surjan Singh(defendant No.1) was the original owner of the suit land bearing Khasra Nos. 1806, 1807, 1808 and 1809 (new numbers 91R/2/3, 12, 9, 10, 11, 90R/6 and 15) measuring 43 Kanals 4 Marlas situated in village Rasulpur, Tahsil/District Amritsar (hereinafter referred to as "the suit land").5. On 06.05.1974, Surjan Singh entered into a contract to sell the suit land to one Gurbachan Kaur(plaintiff) for Rs. 10,000/- per Killa. In terms of the contract, the sale deed of the suit land was to be executed by Surjan Singh in favour of Gurbachan Kaur on or before 28.01.1975.6. On 03.09.1974, Surjan Singh sold the suit land to Joginder Singh, Mehal Singh and Gurnam Singh. This led to filing of the civil suit by Gurbachan Kaur against Surjan Singh(defendant No.1) and subsequent purchasers, namely, Joginder Singh(defendant No.2), Mehal Singh(defendant No.3) and Gurnam Singh(defendant No.4). The suit was for specific performance of contract dated 06.05.1974 filed by Gurbachan Kaur against the aforementioned 4 defendants in relation to the suit land. The defendants contested the suit. Parties went on trial.7. By judgment/decree dated 29.08.1980, the Trial Court dismissed the suit insofar as it pertained to grant of relief of specific performance of contract was concerned but decreed the suit by granting money decree for Rs. 7000/- in plaintiffs favour. In this way, the suit was partly decreed and partly dismissed.8. Felt aggrieved, the plaintiff-Gurbachan Kaur alone filed the first appeal in the Court of District Judge. So far as the defendants are concerned, they did not file any appeal against the money decree suffered by them. By judgment/decree dated 06.11.1984, the first Appellate Court dismissed the appeal filed by the plaintiff and affirmed the judgment/decree of the Trial Court.9. Felt aggrieved, the plaintiff- Gurbachan Kaur carried the matter further and filed Second Appeal before the High Court. The appeal was admitted for final hearing on substantial questions of law framed by the High Court.10. During pendency of the second appeal, Gurbachan Kaur-appellant(plaintiff) died on 10.05.1994. Likewise, Joginder Singh (respondent- defendant No.2) died on 06.12.2000 and lastly Gurnam Singh(respondent-defendant No.4) also died on 19.04.2002. Despite bringing to the notice of the High Court about the death of the appellant and the two respondents, no steps were taken by anyone to bring their legal representatives on record to enable them to prosecute the lis involved in the appeal.11. On 18.05.2010, the High Court allowed the second appeal, set aside the judgment/decree of the two Courts below and decreed the plaintiffs suit for specific performance of the contract against the defendants in relation to the suit land.12. It is against this judgment of the High Court, the legal representatives of defendant No.2(Late Joginder Singh) and defendant No.4(Late Gurnam Singh) filed the present appeal by way of special leave petition and sought permission to question its legality and correctness.

Reasoning:
17. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps 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 22 Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, `the Code) for bringing their names on record in place of the dead persons to enable them to continue the lis.18. The law on the point is well settled. 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 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 the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, 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 jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994.21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code 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 filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.22. It is a fundamental principle of law laid down by this Court in Kiran Singhs case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a "nullity"23. The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld.