HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 266 of 1997
1 Ramchandra Balaiya
a Laxmibai
b Damodar Rao
...Petitioners
versus
1 Baldeo Prasad Gupta
Vijay Shankar Gupta
Kailash Chandra Gupta
Ramshankar Gupta
Shyama Gupta
Ku Ambika Gupta
Ku Rani Gupta
Ram Shankar Gupta
...Respondents
! Shri Gautam Bhaduri, counsel for the appellants
^ Shri B P Sharma with Shri Manilal Sakat, counsel for the respondents
Honble Shri Dilip Raosaheb Deshmukh, J
Dated: 13/10/2008
: Judgment
Appeal under Section 100 of the Code of Civil Procedure, 1908
JUDGMENT
(Delivered on this 13th day of October, 2008)
In this appeal by the legal representatives of
the deceased sole respondent/tenant Ram Chandra
Ballaya in the lower appellate Court, the following
question of law arises for determination:
“Whether the decree of the lower
appellate Court was executable in
view of the fact that Ramchandra
Balaiya, the original defendant died
during the pendency of the appeal?”
(2) Brief facts are that in Civil Suit No.74-A/89,
the IVth Civil Judge Class-I, Raipur dismissed the
suit for eviction of Ram Chandra Ballaya, the
tenant from the suit accommodation vide judgment
and decree dated 24-07-1990. Being aggrieved, the
plaintiff Baldeo Prasad Gupta preferred Civil
Appeal No.101-A/95 before the District Judge,
Raipur. During pendency of the civil appeal, Shri
Bhaduri, learned counsel for the sole
respondent/tenant informed the Court on 01-04-1992
about the death of Ram Chandra Ballaya. On 16-06-
1992, Baldeo Prasad Gupta, the appellant moved an
application under Order 22 Rule 4 of the Code of
Civil Procedure for substitution of the widow Smt.
Laxmi Ballaya and minor son Premrao, i.e., legal
representatives of Ram Chandra Ballaya. Another
application under Order 32 Rule 3 of the Code of
Civil Procedure was also filed for appointment of
Smt. Laxmi Ballaya as the guardian of minor
Premrao. Both the applications mentioned above
were not decided by the learned District Judge,
Raipur and the appeal was allowed by judgment dated
06-02-1997. Before this Court, the legal
representatives of Ram Chandra Ballaya moved an
application I.A.No.1975/1997 seeking permission to
file second appeal as legal representatives of Ram
Chandra Ballaya, which was granted.
(3) Shri Gautam Bhaduri, learned counsel for the
appellants has argued that in the absence of an
order of substitution the legal representatives of
Ram Chandra Ballaya were not heard in Civil Appeal
No.101-A/1995 and, therefore, the impugned judgment
and decree dated 06-02-1997 passed by the District
Judge, Raipur in Civil Appeal No.101-A/1995
deserves to be set aside and the matter remanded to
the lower appellate Court for proceeding from the
stage of consideration of the applications under
Order 22 Rule 4 and under Order 32 Rule 3 of the
Code of Civil Procedure.
(4) On the other hand, Shri B.P.Sharma, learned
counsel appearing for the respondents argued that
the respondents herein could not have done anything
more than filing applications under Order 22 Rule 4
and under Order 32 Rule 3 of the Code of Civil
Procedure and, therefore, the respondents herein
cannot be made to suffer for the default of the
lower appellate Court in deciding the applications
mentioned above.
(5) Having considered the rival submissions, I
have perused the record. There is no element of
doubt that the judgment and decree passed by the
lower appellate Court is a nullity as it has been
passed against a dead person. It is also not
executable because in the absence of an order of
substitution the legal representatives of the
deceased Ram Chandra Ballaya were not heard in
Civil Appeal No.101-A/1995 and the authority of
Shri Bhaduri, learned counsel for Ram Chandra
Ballaya to appear on behalf of the sole
respondent/tenant Ram Chandra Ballaya ceased on the
date of his giving intimation of the death of Ram
Chandra Ballaya. In this view of the matter, the
appeal deserves to be allowed.
(6) In the result, the appeal is allowed. The
impugned judgment and decree dated 06-02-1997
passed by the District Judge, Raipur in Civil
Appeal No.101-A/1995 is set aside. The matter is
remanded to the lower appellate Court with a
direction to proceed in accordance with law from
the stage of consideration of the applications
filed by the appellant under Order 22 Rule 4 and
under Order 32 Rule 3 of the Code of Civil
Procedure. No order as to costs incurred.
JUDGE