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Tetar Devi & Others v/s Buchia & Others

    S.A. No. 466 of 1979

    Decided On, 25 November 1985

    At, High Court of Judicature at Patna

    By, THE HONOURABLE MR. JUSTICE S. SHAMSUL HASAN

    For the Appearing Parties: ---------



Judgment Text

1. This is original defendant's appeal arising out of suit for declaration of title and recovery of possession. The land in dispute is 1-1/2 decimals of land from south in

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plot No. 710 and house thereon situate in Aurangabad town.

2. The point involved is in a narrow compass. Plaintiff No. 2 Janki Sao had died when the suit was still pending in the trial Court. The suit was decreed without making the heirs of the deceased plaintiff party. The original defendant appealed impleading the deceased plaintiffs as respondent. The appeal, however, failed endowing the deceased plaintiff with a favourable decree. In this Court the heirs of the deceased plaintiff have been substituted and have been noticed. The only ground urged is that the appeal and the suit have abated, because the decrees have been passed in favour of a dead person. In my view, if a decree is passed in favour of a dead person, the decree need not be set aside. It is only in case where the decrees are passsed against a dead person that such question arises and that too such decrees are voidable at the instance of the heirs of the deceased party. They can either refuse to contest the decree or they can be made parties at any stage of the proceeding and it can be done in this Court or the matter be remanded to the lower Appellate Court for that purpose and rehearing. This is the state of law now, in view of the recent Supreme Court decision in the case of N. Jayaram Reddy and Another Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, . Interpreting this decision I hold that the decree in favour of the dead person cannot result in setting aside of the decree.

3. Since this is the question involved, the appeal is accordingly dismissed. There will be no order as to costs.
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