Nirpinder Singh vs Harsimrat and Another

Paramjeet Singh, J.

Civil Misc. No. 13005-CII of 2013

Allowed. For the reasons recorded in the application, application under Order 9 Rule 7 of the CPC for restoration of the case is hereby allowed and the revision petition restored to its original number and taken up for hearing for today, itself.

Civil Revision No. 1516 of 2013

Heard.

Instant petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 3.12.2012 (annexure P-5) passed by learned Additional District Judge, Ludhiana, passed in execution petition titled "Nirpinder Singh v. Rupinder Kaur" whereby execution application has been disposed of as having become infructuous.

Brief facts of the case are that during the pendency of petition u/s 13 of the Hindu Marriage Act filed by the petitioner against his wife, an application u/s 26 of the Hindu Marriage Act for custody of minor children was filed by the petitioner. It is further averred that the decree of divorce was passed on 1.8.2005, but in the decree for divorce, no relief u/s 26 of the Hindu Marriage Act was granted. Thereafter, the decree was corrected vide order dated 4.10.2006 and directions were issued to hand over the custody of minors Harsimrat and Pawanpreet Kaur to the petitioner. The petitioner moved an application for execution of decree and sought the custody of both the minors, who are now residing with their maternal grand-father. For setting aside the ex-parte decree of divorce, minors-Harsimrat and Pawanpreet Kaur approached the Court by bringing the facts before the Court that Rupinder Kaur had already been murdered on date of decree. The application was however dismissed vide order dated 13.08.2008.

I have heard learned counsel for the petitioner and perused the case file carefully.

Vide order dated 06.07.2012, the following order was passed by a Coordinate Bench of this Court in FAO No. 3702 of 2008 which was filed by the minors challenging the order dated 13.08.2008 passed by the learned Additional District Judge, Fast Track, Ludhiana.

Heard.

Certainly, this appeal being filed by the legal heirs of the deceased Rupinder Kaur is not maintainable, but at the same time, it also cannot be disputed that no judgment in personam is binding on the legal heirs of the deceased, therefore, decree, if passed in the absence of the wife, who had already died, would certainly be treated as nullity.

Disposed of accordingly.

Admittedly, on the date when the decree of divorce was passed, wife-Rupinder Kaur was no more in this world and FIR No. 128 dated 24.07.2006, in respect of her death was registered at Police Station Kurali, District SAS, Nagar. The minors were not impleaded as party in the divorce petition. In view of settled principle of law that a decree against a dead person is nullity and that finding has already been recorded by a Coordinate Bench of this Court vide order dated 06.07.2012, no ground for interference is made out.

In view of above, I do not find any illegality or perversity in the impugned order dated 3.12.2012. Dismissed.