GURNAM SINGH (D) THR. LRS. versus GURBACHAN KAUR (D) BY LRS. & ORS.
[2017] 3 S.C.R. 901, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2017] 3 S.C.R. 901 
GURNAM SINGH (D) THR. LRS. 
v. 
GURBACHAN KAUR (D) BY LRS. & ORS. 
(Civil Appeal No. 5671 of 2017) 
A 
APRIL 27, 2017 
B 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] 
Code of Civil Procedure, 1908 - Or. XXIJ, rr. 3 and 4 -
Application under - On facts, appellant and two respondents expired 
during the pendency of the second appeal - No steps taken by any 
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of the legal representatives of the deceased on whom the right to·· 
sue devolved, to file an application. u/Or. XX!!, rr. 3 and 4 for bringing 
their names on record to enable them to continue the !is - However, 
the High Court decreed the suit for specific performance of contract 
filed by the plaintiff-respondent against the appellant in relation to 
the suit land - On appeal, held: Decree passed by a court for or D 
against a dead person is a nulli~v .:._ Thus, the impugned judgment is 
a nullity because it was passed by the High Court in favour of and 
also against the dead persons - Non-compliance of rr. o.§ (2) and 
. 4(3) of Or. XX!! resulted in dismissal of second appeal as abated on 
the expiry of 90 days - High Court ceased to have jurisdiction to 
E 
decide the second appeal which stood already dismissed beyond 
the statutory period of 90 days and there was no pending appeal 
on and thereafter - Further, no applications were filed io revive the 
appeal for hearing - Thus, the judgment is set aside. 
Allowing the appeal, the Court 
HELD: 1.1 It is a settled principle of law that the
decree 
passed by a Court for or against a dead person is a "nullity". The 
impugned judgment is a nullity because it was passed by the High 
Court in favour of and also against the dead persons. [Paras 16, 
22][906-A-B; 907-lI] 
Kif-an Singh & Ors. v. Chaman Paswan & Ors. AIR 
1954 SC 340 : [1955] SCR 117; N. Jayaram Reddy & 
Anr. v. Revenue Divisional Officer & Land Acquisition 
Officer, Kurnool (1979) 3 SCC 578 : [1979] 3 SCR 
599; Ashok Tramport Agency v. Awadhesh Kumar & 
901 
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SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A 
Anr. [1998] 5 SCC 567; Amba Bai & Ors. v. Gopal & 
Ors. (2001) 5 SCC 570 - relied on. 
1.2 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 
B 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 t!i~ date of 
death of the party. In other words, on 91" day, there is no appeal 
pending before the Court. It is "dismissed as abated". [Para 
C. 18][906-D-E] 
. 
1.3 Order XXII Rule 3(2) applies in the case of the death of 
plaintiff/appellant and Order XXII Rule 4(3) which applies in the 
case of defendant/respondent provides the c·onsequences for not 
filing the application for substitution of legal representatives by 
the parties concerned within the time prescribed. In the instant 
D case, Order XXII, r. 3(2), 4(3) came in operation because the 
appellant and the two respondents expired during the pendency 
of second appeal and no ;teps 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 XXII 
E Rules 3 and 4 CPC for bringing their names on record in place of 
the dead persons to enable them to continue the lis. The legal 
effect of the non-compliance of Rules 3(2) and
4(3) of Order XXII, 
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 
F 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. [Paras 17, 19, 20][906-E-F; 907-A-C] 
1.4 The appeal.could be revived for hearing only when firstly, 
the proposed legal representatives of the deceased persons had 
G filed an application for substitution of their names and secondly,· 
they had applied for setting aside of the abatement under Order 
XXII Rule 9 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 
H filing the substitution..application under Order XXII Rules 3 and
GURNAM SINGH (D) THR. LRS. v. GURBACHAN KAUR (D) 
903 
BYLRS. 
4 beyond the statutory period of 90 days. If these applications A 
had been allowed by the High Court, the second appeal c9uld 
have been revived for final hearing but not otherwise. Such was 
not the case here because no such applications had been filed. 
[Para 21][907-C-E] 
1.5 The appellants are the legal representatives of B 
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, 
could be raised in appeal or even in execution proceedings arising 
out of such decree. The objection, therefore, is upheld. The 
· impugned judgment/decree is set aside. [Para 23][908-A-Bj 
C 
Case Law Reference 
[1955] SCR 117 
[1979] 3 SCR 599 
(1998) 5 sec 567 
(2001) 5 sec 570 
relied on 
relied on 
relied on 
relied on 
Para 15 
Para22 
Para 22 
Para 22 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5671 
of2017. 
D 
From the Order dated 18.05.20 I 0 of the High Co,urt of Punjab 
E 
and Haryana at Chandigarh in RSA No. 1148 of 1985. 
J;3asava Prabhu S. Patil, Sr. Adv., Sanjay Sarin, Vivek Salathia, 
Ms. Pratikasha Shanna and Dinkar Kalra, Advs. for the Appellants. 
Subhasish Bhowmick, Adv. for the Respondents. 
The Judgment of the Court was delivered by 
ABHAY MANOHAR SAPRE, J. 1. Leave granted. 
2. This appeal is filed by the legal representatives of defendant 
Nos. 2 and 4
against the final judgment and order <:lated 18.05.2012 
passed by the High Court of Punjab and Haryana at Chandigarh in Civil 
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~~ 
Regular Second Appeal No. 1148of1985 whereby the High Court allowed 
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.the plaintiff's appeal, set aside the concurrent findings of the Trial Court 
and the FirstAppellate Court and decreed the plaintiffs suit for specific 
performance of contract against the defendants in relation to the suit 
land. 
3. The facts of tpe cast< lit'. in a narrow compass so also the 
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[2017] 3 S.C.R. 
A 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. I) 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 
B situated in village Rasulpur, Tahsil/DistrictAmritsar (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. I 0,000/- per Killa. In 
terms of the contract, the sale deed of the suit land was to be executed 
c by Surjan Singh in favour ofGurbachan 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. I) and suesequent 
purchasers, namely, Joginder Singh(defendant No.2), Mehal 
D 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 
E 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 plaintiff's favour. In this way, the suit was partly decreed 
and partly dismissed. 
8. Felt aggrieved, the plaintiff-Gurbachan Kaur alone filed the 
F 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. 
G 
9. Felt aggrieved, the plaintiff-Gurbachan Kaur carried the matter 
further and file~ Second Appeal before the High Court. The appeal.was 
admitted for final hearing on substantial questions oflaw framed by the 
High Court. 
10. During pendency of the second appeal, Gurbachan Kaur-
appellant(plaintiff) died on l 0.05.1994. Likewise, Joginder Singh 
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GURNAM SINGH (D) THR. LRS. v. GURBACHAN KAUR (D) 
905 
BY LRS. [ABHAY MANOHAR SAPRE, J.] 
(respondent- defendant No.2) died on 06.12.2000 and lastly Gumam 
A 
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 /is 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 
plaintiff's suit for specific performance of the contract against the 
defendants in relation to the suit land. 
B 
. 
12. It is against this judgment of the High Court, the legal c 
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. 
_ 
13. Heard Mr. Basava Prabhu S. Patil, learned senior counsel for D 
-the appe!lants and Mr. Subhasish Bhowmick, learned counsel for the 
respondents. 
14. The short question, which arises for consideration in this appeal, 
is whether the impugned order allowing the plaintiff's second appeal is 
legally sustainable in law? In other words, the question is whether the 
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High Court had the jurisdiction to decide the second appeal when the 
appellant and 2 respondents had expired during the
pendency of appeal 
and their'legal representatives were not brought on record? 
15. In a leading case of this Court in Kiran Singh & Others vs. 
Chaman Paswan & Others (AIR 1954 SC 340), the learned Judge 
F 
Venkatarama Ayyar speaking for the Bench in his distinctive style of 
writing laid down: the following principle of law being fundamental in · 
nature: 
"It is a fundamental principle that a decree passed by a 
Court without jurisdiction is a nullity, and that its invalidity 
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could be set up whenever and wherever it is sought to be 
enforced or relied upon, even at the stage of execution and 
even in collateral proceedings. A defect of jurisdiction, 
whether it is pecuniary or territorial, or whethei: it._ is in 
respect of the subject-matter of the action, strikes at the 
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[2017] 3 S.C.R. 
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very authority of the Court to pass any decree, and such a 
defect cannot be cured even by consent of parties." 
16. The question, therefore, is whether the impugned judgment/ 
order is a nullity because it was passed by the High Court in favour of 
and also against the dead persons. In our considered opinion, it is a 
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nullity. The reasons are not far to seek. 
17. It is not in dispute that the appellant and the two resp0ndents 
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 aqd on whom the right to sue had aevolved 
c to file an application under Order 22 Rules 3 and 4 of the Code of Civil 
Procedure,1908 (for short, 'the Code') for bringing theirnames on record 
~n place of the dead persons to enable them to continue the !is. 
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 
D 
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 of90 days from the date ofdeath of the 
party. In other words, on 91 '' day, there is no appeal pending before the 
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Court. It is "dismissed as abated". 
19. Order 22 Rule 3(2)
which applies in the case of the death of 
. plaintif£'appellant and Order 22 Rule 4(3) which applies in the case of 
defendant/respondent provides .the consequences for not filing the 
application for substitution of legal representatives by the parties 
concerned within the time prescribed. These provisions read as under:-
Order 22 Rule 3(2) 
"Where within the time limited by law no application is 
made under sub-rule (1) the suit shall abate so far as the 
deceased plaintiff is concerned, and, on the application of 
the defendant, the Court may award to hlm the costs which 
he may have incurred in defending the suit, to be recovered 
from the estate of the deceased plaintiff." 
· Order 22 Rule 4(3) 
"Where within the time limited by law no application is made
GURNAM SINGH (D) THR. LRS. v. GURBACHAN KAUR (D) 
907 
. BY LRS. [ABHAY MANOHAR SAPRE, J.] 
under sub-rule (I), the suit shall abate as against the deceased A 
defendant." 
' 
20. 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 B 
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 
expiryof90 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 per.ding 
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appeal on and after l 0.08.1994. 
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 D 
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 
E 
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 Singh's case (supra) that a decree passed by the Court, ifit is a 
nullity, its validity can be questioned in any proceeding including in 
execution proceedings or even in collateral proceedings whenever sµch 
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 
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. principle of law that the decree passed by a Court for or against a .dead 
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person is a "nullity" (See-N. Jayaram Reddy & Anr. Vs. Revenue 
Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 
sec 578, Ashok Transport Agency vs. Awadhesh Kumar & Anr., 
(1998) 5 sec 567 and Aruba Bai & Ors. Vs. Gopal & Ors., (2001) 5 
sec 570). 
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[2017] 3 S.C.R. 
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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 
B decree. In our view, the objection, therefore, deserves to be upheld. It 
. is, accordingly, upheld. 
24. In the light of foregoing discussion, we allow the appeal and 
set aside the impugned judgment/decree. 
Nidhi Jain 
Appeal allowed.