1 ( 2026:HHC:22891 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs No.239 & 240 of 2022 Decided on: 17.06.2026 ________________________________________________________ (1) FAO No.239 of 2022 Ganesh Dutt & others …..Appellants Versus Inder Kumar Vohra & others ……Respondents ________________________________________________________ (2) FAO No.240 of 2022 Ganesh Dutt & others …..Appellants Versus Inder Kumar Vohra & others ……Respondents ________________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? ________________________________________________________ For the appellants: Mr. Nimish Gupta, Advocate, in both the appeals. For the respondents: Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun Negi, Advocate, for respondents No.1 to 7, 9 to 19, 21 to 25, 27 to 34 & 51 to 53. ________________________________________________________ Sushil Kukreja , Judge (Oral) Since both these appeals are the offshoot of impugned order dated 02.08.2022, passed by learned Additional District Judge-II, Solan, District Solan, HP, hence, they are being taken up 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ( 2026:HHC:22891 ) together for disposal. 2. By way of the instant appeals, the appellants-plaintiffs have laid challenge to the impugned order dated 02.08.2022, passed by the learned First Appellate Court, whereby the appeals preferred by the respondents-defendants were allowed and the judgment and decree dated 30.11.2015, passed by the learned Civil Judge (Junior Division), Kasauli, District Solan, HP, in Civil Suit No.94/1 of 2008 and Counter Claim No.129/1 of 2009, titled Ganesh Dutt & others Vs. Inder Kumar Vohra & another, were set- aside and the case was remanded back to the leaerned Trial Court for fresh decision and to decide whether on account of non bringing on record the legal representatives of deceased defendants and without claiming exemption, as required under law, the suit had abated in its entirety or not and if so, then the learned Trial Court after calling reply, shall proceed further and dispose of the suit in accordance with law. 3. It is not in dispute that defendants No.8, 21, 22, 26 and 29 had died during pendency of the suit before the learned Trial Court and despite having knowledge of the fact of their death, no steps were taken by the plaintiffs (appellants herein) to bring on record their legal representatives. The trial was 3 ( 2026:HHC:22891 ) conducted, concluded and the judgment and decree were passed by the learned Trial Court against the aforesaid persons, who had already died during pendency of the suit. 4. It is settled proposition of law that where a party dies in a pending suit/appeal and judgment/decree is passed in ignorance to such death, the question of substitution of his/her legal heirs and setting aside the abatement, if any, can only be considered by the Court, before whom the suit/appeal was pending at that time. 5. In Jagan Nath and others versus Smt. Ishwari Devi, 1988 (2) Shimla Law Cases 273, it has been held that the question of substitution of legal representatives of a deceased party and the abatement of the suit/appeal for want of consequential steps has to be decided by that very Court where at the time of death of such party, the lis was pending. Paragraph 6 of the aforesaid judgment reads as under:- “6. The fact that one of the several defendant-appellants against whom an indivisible decree was passed by the trial Court, had died during the pendency of the appeal before the lower appellate court, and steps to bring his legal representatives on the record of the appeal had not been taken within the prescribed period, being undisputed, it must be held that the appeal had already abated prior to the decision of the lower appellate court dated April 9, 1987. The decree of the lower appellate court was thus a nullity as it had been passed also against a dead person. The legal position is not in dispute. What is the course which should normally be 4 ( 2026:HHC:22891 ) adopted in a situation like this, has been succinctly stated in the decision of the Calcutta High Court in Kanailal’s case (supra). It was observed by the Division Bench, after noticing the decisions of various High Courts and the Supreme Court, that: ….. In such circumstances, in our opinion the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely, he ineffective decree passed by the court of appeal below should be set aside and the appeal should be remanded to the said court, keeping it open to the appellants to move the said court for an opportunity to have the abatement set aside if the appellants could satisfy the said court that they are so entitled in law………… I am in entire agreement with the aforesaid observations.” 6. Further in Karam Chand and others versus Bakshi Ram and others, 2002 (1) Shimla Law Cases 9, it has again been held that as and when the questions with respect to substitution of legal heirs of deceased party and abatement of the suit or appeal for want of consequential steps, arise in relation to a suit or appeal, these are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party. Relevant paragraphs of the aforesaid judgment read as under:- "4. In the given circumstances of the case, one or the questions which arises for determination is as to the effect of death of Pohlo Ram and not bring on record his legal representatives in the appeal before the lower appellate Court or in other words, the questions now involved in the matter are as follows: (i) Whether the appeal before the lower appellate Court had abated, if so the effect and extent of the abatement; (ii) Whether the abatement should be set aside or not; and (iii) Whether the legal representatives of the deceased may be allowed to be brought on record or not? 5. It is well settled that as and when the questions, as aforesaid, arise in relation to a suit or appeal, at the first instance, these 5 ( 2026:HHC:22891 ) are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and abatement, if any, took place” 7. Similarly, the apex Court in Kishun @ Ram Kishun versus Bihari, AIR 2005 Supreme Court 3799, has held that a judgment against or in favour of a dead person is nullity. 8. In the instant case, defendants No.8, 21, 22, 26 & 29 had died before the judgment and decree were passed by the learned Trial Court, hence, the question of substitution of their legal heirs and setting-aside the abatement, if any, was to be decided by the said Court where at the time of death of defendants No.8, 21, 22, 26 & 29, the suit was pending. 9. In view of what has been discussed hereinabove, no interference is required in the impugned order dated 02.08.2022, passed by the learned Additional District Judge-II, Solan, District Solan, HP, and, hence, both these appeals deserve dismissal and are accordingly dismissed. 10. Interim order dated 27.05.2025 stands vacated. The parties are directed to appear before the learned Trial Court on 29.07.2026. Records be sent back forthwith. 6 ( 2026:HHC:22891 ) 11. Needless to say that all the contentions raised by the appellants in the grounds of appeals are left open to be decided by the learned Trial Court in accordance with law. Pending miscellaneous application(s), if any, shall also stand disposed of. ( Sushil Kukreja ) June 17, 2026 Judge (V.Himalvi)