Rajasthan High Court – Jodhpur
Lrs Of Mahendra Singh S/O Sh. Machi Singh vs Jogender Singh (2025:Rj-Jd:22444) on 9 May, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:22444]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18560/2023
LRs Of Mahendra Singh S/o Sh. Machi Singh, R/o Village
Sadakwala, Tehsil Suratgarh District Sriganganagar (Raj.)
1. Darshan Singh S/o Late Sh. Mahendra Singh, Aged About
35 Years, R/o Village Sadakwala, Tehsil Suratgarh District
Sriganganagar (Raj.)
2. Jeet Singh S/o Late Sh. Mahendra Singh, Aged About 33
Years, R/o Village Sadakwala, Tehsil Suratgarh District
Sriganganagar (Raj.)
3. Shanti Devi W/o Late Sh. Mahendra Singh, Aged About 35
Years, R/o Village Sadakwala, Tehsil Suratgarh District
Sriganganagar (Raj.)
4. Chinder Pal Kaur D/o Late Sh. Mahendra Singh, Aged
About 36 Years, R/o Village Sadakwala, Tehsil Suratgarh
District Sriganganagar (Raj.)
—-Petitioners
Versus
1. Jogender Singh S/o Machhi Singh, R/o Village Sadakwala,
Tehsil Suratgarh District Sriganganagar (Raj.)
2. Kalwant Singh S/o Suraj Singh, R/o Khinyawali Tehsil
Fazilka, District Firojpur (Punjab)
3. Balwant Singh S/o Suraj Singh, R/o Khinyawali Tehsil
Fazilka, District Firojpur (Punjab)
4. Makhan Singh S/o Suraj Singh, R/o Khinyawali Tehsil
Fazilka, District Firojpur (Punjab)
5. Kashmir Singh S/o Suraj Singh, R/o Khinyawali Tehsil
Fazilka, District Firojpur (Punjab)
6. Jasveer Singh S/o Suraj Singh, R/o Khinyawali Tehsil
Fazilka, District Firojpur (Punjab)
7. State Of Rajasthan, Through Tehsildar Suratgarh, District
Sriganganagar (Raj.)
—-Respondents
For Petitioner(s) : Mr. B.S. Sandhu
For Respondent(s) : Mr. Sushil Bishnoi with
Mr. Rahul Mandan
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JUSTICE DINESH MEHTA
Order
09/05/2025
1. By way of present writ petition, the petitioners (legal
representatives of the deceased Mahendra Singh) have challenged
the order dated 14.09.2023 passed by the learned Board of
Revenue, Ajmer (hereinafter referred to as ‘the Board’), whereby
the appeal filed by their prepositus Mahendra Singh was rejected.
2. Mr. Sushil Bishnoi, learned counsel for the respondents at the
outset raised an objection that Mahendra Singh, who was the sole
appellant before the Board had passed away during the pendency
of the appeal on 27.08.2020, whereafter, his legal representatives
neither informed the Board about his demise nor had they taken
up any proceedings for their substitution and thus, the appeal
pending before the Board had abated on 26.11.2000 on expiry of
90 days from the death of the appellant of the appeal pending
before the Board.
3. Mr. B.S. Sandhu, learned counsel for the petitioners at this
juncture submitted that so far as present writ petition is
concerned, the same has been filed by the legal representatives of
Mahendra Singh and since they were not aware of pending
proceedings before the Board, they could not move application for
their substitution. It was nevertheless contended that the appeal,
which has been decided on 14.09.2023 against Mahendra Singh,
who had since passed away, though decided on merit is a nullity
and the matter deserves to be remanded back to the Board for
deciding the same afresh.
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4. Learned counsel for the respondents, however, submitted
that if the relief prayed by the petitioners is allowed, then, it will
lead to failure of justice, because the legal representative(s) of the
litigant would intentionally not move the application for
his/her/their substitution and later on, once the order passed by
the court concerned is against him/her/them, they will challenge
the same on the count of death and pray that the order be set
aside.
5. Mr. Bishnoi cited the judgment of Hon’ble the Supreme Court
in the case of Amba Bai & Ors. vs. Gopal & Ors., reported in
(2001) 5 SCC 570 to buttress his argument that the appeal
before the Board had abated and the order passed by the Revenue
Appellate Authority on 18.09.2008 has attained finality. He
reiterated that the order passed by the Board on 14.09.2023
being a nullity deserves to be ignored and the order passed by the
Revenue Appellate Authority is required to be given effect to.
6. Learned counsel for the respondents also relied upon the
recent judgment of Hon’ble the Supreme Court in the case of Om
Prakash Gupta @ Lalloowa (Now deceased) & Ors. vs.
Satish Chandra (Now deceased) : Civil Appeal No.
13407/2024 decided on 11.02.2025 and submitted that the
proper course for the petitioners is to move an application for
recalling of the order, as has been held by Hon’ble the Supreme
Court.
7. He further submitted that on expiry of the limitation period
for moving an application for substitution of the appellant, the
appeal stood abated and therefore, the impugned order of the
Board is a nullity and liable to be ignored and consequently the
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order of the Revenue Appellate Authority dated 18.09.2008, which
was in favour of the present respondents has attained finality. He
argued that the petitioners cannot therefore challenge the order of
the Board on merit.
8. Distinguishing the above referred judgment rendered in the
case of Amba Bai (supra), learned counsel for the petitioners
pointed that the proceedings before Hon’ble the Supreme Court
arose out of the execution proceedings and no appeal had been
preferred against the order of second appellate court, whereas, in
the present case the petitioners have preferred the present writ
petition under Article 227 of the Constitution of India, being only
remedy available, since no further appeal has been provided
against the order of the Board.
9. Heard learned counsel for the parties and considered the
judgments cited.
10. The facts in the present case are not disputed including the
fact that the petitioners being legal representatives have failed to
move an application for their substitution in the event of death of
their prepositus – Mahendra Singh, who was the appellant before
the Board.
11. According to the petitioners, it is only when they received
the decision of the Board they learnt about said appeal filed by
their father and hence, preferred the present writ petition.
Learned counsel submitted that the present petition, which has
been filed by the legal representatives of said Mahendra Singh be
heard and the order of the Board, which is contrary to law be set
aside.
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12. True it is, that the petitioners being legal representatives of
the deceased Mahendra Singh have preferred the petition
challenging the merits of the adjudication made by the Board. But,
according to this Court, their challenge to the findings of the
Board and Revenue Appellate Authority cannot sustain because
consequent to the death of Mahendra Singh, who had passed
away on 27.08.2020, the appeal stood abated on 26.11.2020
(after 90 days, as per Article 120 of the Limitation Act, 1901). If
the petitioners wanted to step into the shoes of their deceased
father, an application ought to have been preferred under Order
XXII Rule 3 of Code of Civil Procedure read with section 5 of the
Limitation Act and Order XXII Rule 9 of Code of Civil Procedure,
but the same was admittedly not done.
13. The position of law that a decree or order passed in favour of
or against any dead person is a nullity is a settled position of law.
There cannot be an iota of doubt that on 26.11.2020, the appeal
had abated. There is some substance in Mr. Bishnoi’s argument
that the petitioners should have moved an application for
recalling/review of the order under consideration, more
particularly when the writ petition is pending for the last 18
months. But the same has not been done.
14. The judgments of Hon’ble the Supreme Court in the case of
Om Prakash Gupta @ Lalloowa (supra) and Amba Bai (supra)
cited by learned counsel for the respondents though at a first flush
gives an impression that Mr. Bishnoi’s contention is correct,
however, a careful reading thereof reveals that in the case of
Amba Bai (supra), the matter went upto Hon’ble the Supreme
Court arising out of the execution proceedings, in which the order
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impugned was passed by this Court wherein it was held that since
during the pendency of second appeal, the appellant had died, the
second appeal had abated and such decree had merged in the
First Appeal and therefore, the decree could not be executed.
Hon’ble the Supreme Court was therefore, pleased to set aside
said view of the High Court and permitted the execution to
continue.
15. In the case of Om Prakash Gupta @ Lalloowa (supra), the
matter arose because the legal heirs of the appellant (Om Prakash
Gupta @ Lalloowa) had preferred an application for
recalling/restoration of the order before the High Court, which was
dismissed. Considering the facts of the case, Hon’ble the Supreme
Court allowed the appeal while setting aside the abatement and
granting substitution.
16. Simply because, the proceedings before Hon’ble the
Supreme Court arose out of the application for
recalling/restoration of such order under consideration, in the
opinion of this Court, said judgment rendered in the case of Om
Prakash Gupta @ Lalloowa (supra) cannot be construed to be
holding as a matter of law that in every such case, firstly an
application for recalling/restoration has to be filed.
17. Per contra, this Court finds that the judgment rendered by
this Court in the case of Udai Ram vs. Dharam Chand, reported
in MANU/RH/0039/1994 deals with almost similar fact
situation. The relevant part of the judgment is being reproduced
hereinfra:-
“The consensus of legal opinion in such circumstances
appears to be that where in an appeal a decree is(Downloaded on 12/05/2025 at 09:35:06 PM)
[2025:RJ-JD:22444] (7 of 9) [CW-18560/2023]passed in ignorance of death of one of the defendants
respondents during the pendency of that appeal, the
appeal abates against the dead person. The High Court
in appeal against such a decree cannot itself set aside
the abatement nor can it affirm the decree passed by
the lower appellate Court. The proper course in such a
case is to set aside the ineffective decree passed by the
lower appellate Court and, remand the case to the
Court where abatement has taken place leaving the
parties to take necessary steps to have the effect of
abatement set aside if they so desire and if they can
satisfy the Court that parties are entitled to get the
abatement set aside under law.”
18. Mr. Bishnoi’s contention that if the order passed by the Board
is set aside and the matter is remanded back to the Board for
consideration of application for substitution (if filed by the
petitioners), then, every litigant would adopt the same strategy.
And whenever the matter on merit is against them, they would
challenge the same on technical grounds, cannot be accepted. It
has another aspect as well. Had the petitioners not sought their
substitution intentionally and in the event the Board had decided
the matter in their favour by accepting the appeal, the order which
they got on merit would still be a nullity and the opposite party
would always have the advantage of taking this plea that such
order, which has been passed qua a dead person is a nullity.
19. This Court is, therefore, of the view that the law should take
its own course and if the order passed against a dead person is a
nullity, it has to be given its legal effect. But, declaring an order to
be a nullity cannot in any manner take away legal representatives’
rights of undertaking further remedies.
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20. This Court has its own doubt about the maintainability of
review or recalling application. Once the order has travelled upto
this Court under Article 226 of the Constitution of India, the
proper course in such a situation is to move an application for
setting aside the abatement in accordance with law. However,
since the Board has passed the order on merit, the Board may or
may not pass appropriate order pursuant to application filed by
the petitioners for setting aside the abatement, as the matter has
travelled upto this Court. It would, therefore, be necessary for this
Court to set aside the order or adjudication made on merit while
also holding that the same was a nullity.
21. For the sake of argument, even if Mr. Bishnoi’s argument is
accepted, then, asking the petitioners to move an application for
recalling/restoration before the Board would be a futile exercise,
more particularly when parties had been litigating before this
Court for the last 18 months.
22. Following the above observation in the case of Udai Ram
(supra), this Court deems it appropriate, expedient so also in the
interest of justice to set aside the order dated 14.09.2023 passed
by the Board, which is otherwise a nullity.
23. The writ petition is, therefore, allowed.
24. The order dated 14.09.2023 passed by the Board in Appeal
No.10192/2008 is, hereby, quashed and set aside.
25. Nevertheless, the petitioners have to move appropriate
application(s) for their substitution before the Board.
26. In case, any such application is preferred, the Board shall
consider the same in accordance with law, aptly considering the
period from 22.11.2023 (date of filing the writ petition) to the
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date of the order instant, to be a period during which the
petitioners were bona-fidely pursuing their remedy before this
Court.
27. Needless to observe that the respondents shall be free to
contest any such application for substitution, if filed on all
available grounds.
28. Stay application also stands disposed of, accordingly.
(DINESH MEHTA),J
319-Mak/-
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