Full Judgment Text
REPORTABLE
2025 INSC 1283
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO……………OF 2025
(Arising out of Special Leave Petition (Civil) No. 9947 of 2024)
VIKRAM BHALCHANDRA GHONGADE APPELLANT
VERSUS
THE STATE OF MAHARASHTRA & ORS. RESPONDENTS
J U D G M E N T
ATUL S. CHANDURKAR, J.
1. Application seeking permission to appear and argue in-
person is allowed.
2. Leave granted.
3. The appellant, who is the legal heir of the original plaintiffs,
seeks to execute the decree passed by the trial Court in favour
of the original plaintiffs. The executing Court has, however,
refused to permit execution of the decree passed by the trial
Court on the ground that the appeal preferred by the defendant
Signature Not Verified
Digitally signed by
KAPIL TANDON
Date: 2025.11.06
16:22:12 IST
Reason:
Nos. 4 and 5 could not be stated to have abated notwithstanding
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 1 of 12
the death of defendant Nos. 4 and 5 prior to hearing of the first
appeal. The said appeal having been decided on merits and the
decree passed by the trial Court having been modified, the
decree passed by the trial Court could not have been executed.
4. The facts lie in a narrow compass. It is the case of the
appellant that his predecessor- Mr. Arjunrao Thakre was allotted
agricultural land from Survey Nos.106 and 107/1 situated at
Village Takarkheda, Taluka Arvi, District Wardha, Maharashtra
being an Ex-Army Serviceman. After his death, it was alleged that
the said land was re-allotted by the Collector, Wardha to the
defendant Nos.3 to 5. The legal heirs of late Mr. Arjunrao Thakre
filed RCS No.181 of 2001 for a declaration that the allotment of
the said land in favour of defendant Nos.3 to 5 was illegal. The
trial Court vide its judgment dated 14.08.2006 decreed the suit
by holding the allotment of the suit land in favour of defendant
Nos.3 to 5 to be illegal. It also declared that the predecessor of
the plaintiffs had been allotted the said land and thus, his legal
heirs were the owners of the same. Accordingly, a decree for
possession of the said land was passed in their favour.
5. The defendant Nos.4 and 5 being aggrieved by the
aforesaid decree preferred an appeal under Section 96 of the
Code of Civil Procedure, 1908 (for short, “the Code”). Before the
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 2 of 12
appeal could be heard, the defendant No.4 died on 27.10.2006,
while the defendant No.5 died on 20.09.2010. This fact was not
brought to the notice of the first appellate Court, which heard the
counsel for the parties on 28.09.2010. The first appeal was partly
allowed on 20.10.2010. The decree passed by the trial Court was
modified and the plaintiffs were held entitled only to a portion of
the lands that had been allotted to Mr. Arjunrao Thakre. The
original plaintiffs being aggrieved by the aforesaid decree of the
first appellate Court preferred a second appeal under Section
100 of the Code. The said appeal came to be disposed of by the
Registrar (Judicial) as abated against defendant Nos. 4 and 5 on
the ground that they had expired during pendency of the first
appeal and their legal heirs had not been brought on record
within the limitation period. The original plaintiffs sought
restoration of the second appeal by urging that the first appeal
preferred by defendant Nos.4 and 5 itself had abated as the said
defendants had died during pendency of the first appeal and their
legal heirs had not been brought on record. It was, thus, urged
that the judgment of the first appellate Court was a nullity as the
appeal filed by the said defendants had abated. The High Court
vide its order dated 03.12.2012 noted these facts and by
observing that the said factual position was not in dispute, held
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 3 of 12
that the second appeal could not have been dismissed as
abated. The second appeal was accordingly restored. The
original plaintiffs thereafter sought to withdraw the second appeal
by urging that the first appeal preferred by defendant Nos.4 and
5 itself had abated and the judgment of the trial Court was in
operation. The second appeal was, accordingly, dismissed as
withdrawn.
6. The appellant thereafter sought to execute the decree
passed by the trial Court on 14.08.2006. He, accordingly, filed
Regular Darkhast No.22 of 2022 before the executing Court. The
executing Court issued notices to the judgment debtors and
thereafter heard the parties. The appellant urged that since the
first appeal preferred by defendant Nos.4 and 5 had abated, the
decree passed by the trial Court was liable to be executed. The
executing Court however found that the defendant No.5 had
expired on 20.09.2010 and the first appeal had been decided on
20.10.2010. After the death of defendant No.5 on 20.09.2010,
there was a period of ninety days for bringing his legal heirs on
record. As the first appeal was decided prior to the expiry of the
period of ninety days, it could not be said that the first appeal had
abated by virtue of the death of defendant No.5. It further
observed that if the first appeal would have been decided after
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 4 of 12
19.12.2010, then it could be said that it had abated. The
executing Court, therefore, held that the decree passed by the
trial Court having merged with the decree passed by the first
appellate Court, the appellant was not justified in seeking
execution of the decree passed by the trial Court. The execution
application preferred by the appellant came to be dismissed with
costs.
7. The appellant being aggrieved by the aforesaid order
approached the High Court by filing Writ Petition No. 5791 of
2023. The learned Judge of the High Court on 11.03.2024 upheld
the order passed by the executing Court and dismissed the said
writ petition. Being aggrieved, the appellant has come up in
appeal.
8. The appellant-in-person submits that the defendant No.4
having expired on 27.10.2006 and the defendant No.5 having
expired on 20.09.2010, their legal heirs were never brought on
record. The first appellate Court heard the learned counsel for
the parties on 28.09.2010, which was after the death of both the
defendants. The said appeal was partly allowed on 20.10.2010.
Thus, when the appeal was decided, both the appellants, namely
defendant Nos. 4 and 5 had expired and their legal heirs had not
been brought on record. As a result, the adjudication by the first
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 5 of 12
appellate Court was a nullity and the decree passed by it on
20.10.2010 could not have been executed. The decree passed
by the trial Court was the only decree holding the field. Its
execution was rightly sought by the appellant. The executing
Court erred in holding that the judgment of the first appellate
Court was legal and valid despite the death of both the
appellants. The appellant-in-person invited attention to the
provisions of Order XXII Rule 2 (2) and Rule 6 of the Code to
urge that the order passed by the executing Court was contrary
to law. The learned Judge of the High Court committed a similar
error while dismissing the writ petition. He placed reliance on the
decision in P. Chandrasekharan and others vs. S.
1
Kanakarajan and others , and prayed that the execution
proceedings be restored to enable the appellant to execute the
decree passed by the trial Court.
9. The legal heirs of the defendant Nos.4 and 5 though served
have not chosen to contest the present proceedings. Mr. Sanjeev
Kaushik, learned counsel appearing for the respondent No.3
supported the impugned order and submitted that the executing
Court rightly declined to execute the decree passed by the trial
1
2007 INSC 495
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 6 of 12
Court. The said decree having been modified by the first
appellate Court, that was the only decree that was liable to be
executed. Mr. Shrirang B. Verma, learned counsel appearing for
the respondent Nos. 1 and 2 also supported the order passed by
the executing Court as upheld by the High Court.
10. Having heard the appellant-in-person as well as the learned
counsel for the respondents, we are of the view that the
executing Court erred in dismissing the execution petition as not
maintainable. The decree passed by the first appellate Court
having been passed in an appeal, where both the appellants had
expired prior to the appeal being heard, its decree in favour of
dead persons was a nullity. The decree passed by the trial Court,
therefore, is liable to be executed.
11. It is not in dispute that the suit filed by the predecessors of
the appellant was decreed on 14.08.2006. The trial Court
declared the original plaintiffs as owners of the suit land that had
been allotted to Mr. Arjun Thakre. The plaintiffs were held entitled
to receive possession of the said lands. The subsequent
allotment of the same land in favour of defendant Nos.3 to 5 was
held to be illegal. The defendant No.3 did not choose to challenge
this decree. It is only the defendant Nos.4 and 5, who preferred
an appeal under Section 96 of the Code. During pendency of that
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 7 of 12
appeal, the defendant No.4 expired on 27.10.2006, while the
defendant No.5 expired on 20.09.2010. The record indicates that
the appeal was heard on 28.09.2010. As per the provisions of
Order XXII Rule 6 of the Code, if a party expires between the
conclusion of hearing and pronouncement of the judgment, the
same does not result in abatement of such proceedings and the
judgment on being pronounced, would have the same force and
effect as if it had been pronounced before the death of such party
took place. In view of the fact that the defendant Nos.4 and 5 had
died prior to the appeal being heard on 28.09.2010, it is evident
that the proceedings in the said appeal are not saved by the
provisions of Order XXII Rule 6 of the Code. In effect, the appeal
was decided notwithstanding the death of both the appellants,
who had preferred the appeal.
12. According to the executing Court, since the appeal was
decided on 20.10.2010, which was prior to expiry of a period of
ninety days from the death of defendant No.5 on 20.09.2010, the
appeal could not have been disposed of as abated. It is correct
that the abatement of a proceeding cannot take place prior to
expiry of the prescribed period of limitation of ninety days under
Article 120 of the Limitation Act, 1963 for bringing on record the
legal heirs. Notwithstanding this position, the fact remains that
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 8 of 12
prior to the appeal being heard and thereafter decided, both the
appellants who had filed the said appeal were no more. The
judgment pronounced in the first appeal on 20.10.2010 was,
thus, in favour of the parties who were no more alive. The said
adjudication, therefore, amounted to a nullity and the same did
not have the force of law. This position is not in doubt and we
may only refer to the decisions in Rajendra Prasad and another
2
vs. Khirodhar Mahto and others and Amba Bai and others
3
vs. Gopal and Others in this regard. The appellant, therefore,
is justified in contending that the decree passed by the first
appellate Court was a nullity as it was passed in favour of the
appealing parties, who had expired prior to the appeal being
heard and decided. As a result, the only decree that could be
enforced was the one passed by the trial Court on 14.08.2006.
13. In our view, therefore, the appellant is justified in seeking
execution of the decree passed by the trial Court on the premise
that the decree passed by the first appellate Court was a nullity
having been passed in favour of dead persons. We are fortified
in this view by the decision in Bibi Rahmani Khatoon and
2
Civil Appeal No. 2275 of 1994 decided on 11.01.1994
3
2001 INSC 263
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 9 of 12
4
others vs. Harkoo Gope and others, wherein it was held as
under:
“If a party to a proceeding either in the trial Court of
any appeal or revision dies and the right to sue
survives or a claim has to be answered, the heirs and
legal representatives of the deceased party would
have to be substituted and failure to do so would
result in abatement of proceedings. Now, if the party
to a suit dies and the abatement takes place, the suit
would abate. If a party to an appeal or revision dies
and either the appeal or revision abates, it will have
no impact on the judgment, decree or order against
which the appeal or revision is preferred. In fact, such
judgment, decree or order under appeal or revision
would become final.”
These observations though made in the context of
abatement of proceedings, the same position would arise when
the appellant/s expires prior to hearing of the appeal, which is
subsequently allowed without the legal heirs being brought on
record. In the case in hand, the judgment in favour of the
deceased appellants would be a nullity in the absence of the legal
heirs being brought on record and the judgment of the trial Court
would be the one that would govern the rights of the parties.
Hence, the decree passed by the trial Court would revive for
being executed.
4
1981 INSC 100
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 10 of 12
14. The execution proceedings herein could not have been
dismissed on the ground that the decree passed by the trial Court
was superseded by the decree passed by the first appellate
Court and was modified. Since the decree of the first appellate
Court was a nullity, the plaintiffs were entitled to execute the
decree passed by the trial Court. It is well settled that if a decree
is a nullity, its invalidity can be set up whenever and wherever it
is sought to be enforced, even at the stage of execution as held
5
in Kiran Singh and others vs. Chaman Paswan and others .
15. We may note that the legal heirs of defendant Nos.4 and 5
who had preferred the first appeal did not take any steps
whatsoever to have themselves impleaded before the first
appellate Court. Even after the appellant filed the execution
proceedings, no steps have been taken by the legal heirs of
defendant Nos.4 and 5 to have themselves impleaded. Even
before this Court, they have not chosen to contest the
proceedings. The contest by respondent No.3, who was the
defendant No.3 before the trial Court, would be of no avail as the
defendant No.3 did not challenge the decree passed by the trial
Court.
5
1954 INSC 45
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 11 of 12
16. For all these reasons, we are of the view that the executing
Court committed an error in dismissing the execution
proceedings that sought to execute the decree passed by the trial
Court. The learned Single Judge was also not justified in
upholding the order passed by the executing Court. The
appellant would be entitled to seek execution of the decree
passed in Regular Civil Suit No.181 of 2001.
Accordingly, the order dated 21.06.2023 passed by the
executing Court in Regular Darkhast No.22 of 2022 as well as
the order passed by the High Court in Writ Petition No.5791 of
2023 on 11.03.2024 are set aside. The execution proceedings
are restored for being decided in accordance with law by the
executing Court. The civil appeal is allowed in aforesaid terms
leaving the parties to bear their own costs.
…………………………………………..J.
[PAMIDIGHANTAM SRI NARASIMHA]
…..………………………..J.
[ATUL S. CHANDURKAR]
NEW DELHI,
NOVEMBER 06, 2025.
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 12 of 12
2025 INSC 1283
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO……………OF 2025
(Arising out of Special Leave Petition (Civil) No. 9947 of 2024)
VIKRAM BHALCHANDRA GHONGADE APPELLANT
VERSUS
THE STATE OF MAHARASHTRA & ORS. RESPONDENTS
J U D G M E N T
ATUL S. CHANDURKAR, J.
1. Application seeking permission to appear and argue in-
person is allowed.
2. Leave granted.
3. The appellant, who is the legal heir of the original plaintiffs,
seeks to execute the decree passed by the trial Court in favour
of the original plaintiffs. The executing Court has, however,
refused to permit execution of the decree passed by the trial
Court on the ground that the appeal preferred by the defendant
Signature Not Verified
Digitally signed by
KAPIL TANDON
Date: 2025.11.06
16:22:12 IST
Reason:
Nos. 4 and 5 could not be stated to have abated notwithstanding
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 1 of 12
the death of defendant Nos. 4 and 5 prior to hearing of the first
appeal. The said appeal having been decided on merits and the
decree passed by the trial Court having been modified, the
decree passed by the trial Court could not have been executed.
4. The facts lie in a narrow compass. It is the case of the
appellant that his predecessor- Mr. Arjunrao Thakre was allotted
agricultural land from Survey Nos.106 and 107/1 situated at
Village Takarkheda, Taluka Arvi, District Wardha, Maharashtra
being an Ex-Army Serviceman. After his death, it was alleged that
the said land was re-allotted by the Collector, Wardha to the
defendant Nos.3 to 5. The legal heirs of late Mr. Arjunrao Thakre
filed RCS No.181 of 2001 for a declaration that the allotment of
the said land in favour of defendant Nos.3 to 5 was illegal. The
trial Court vide its judgment dated 14.08.2006 decreed the suit
by holding the allotment of the suit land in favour of defendant
Nos.3 to 5 to be illegal. It also declared that the predecessor of
the plaintiffs had been allotted the said land and thus, his legal
heirs were the owners of the same. Accordingly, a decree for
possession of the said land was passed in their favour.
5. The defendant Nos.4 and 5 being aggrieved by the
aforesaid decree preferred an appeal under Section 96 of the
Code of Civil Procedure, 1908 (for short, “the Code”). Before the
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 2 of 12
appeal could be heard, the defendant No.4 died on 27.10.2006,
while the defendant No.5 died on 20.09.2010. This fact was not
brought to the notice of the first appellate Court, which heard the
counsel for the parties on 28.09.2010. The first appeal was partly
allowed on 20.10.2010. The decree passed by the trial Court was
modified and the plaintiffs were held entitled only to a portion of
the lands that had been allotted to Mr. Arjunrao Thakre. The
original plaintiffs being aggrieved by the aforesaid decree of the
first appellate Court preferred a second appeal under Section
100 of the Code. The said appeal came to be disposed of by the
Registrar (Judicial) as abated against defendant Nos. 4 and 5 on
the ground that they had expired during pendency of the first
appeal and their legal heirs had not been brought on record
within the limitation period. The original plaintiffs sought
restoration of the second appeal by urging that the first appeal
preferred by defendant Nos.4 and 5 itself had abated as the said
defendants had died during pendency of the first appeal and their
legal heirs had not been brought on record. It was, thus, urged
that the judgment of the first appellate Court was a nullity as the
appeal filed by the said defendants had abated. The High Court
vide its order dated 03.12.2012 noted these facts and by
observing that the said factual position was not in dispute, held
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 3 of 12
that the second appeal could not have been dismissed as
abated. The second appeal was accordingly restored. The
original plaintiffs thereafter sought to withdraw the second appeal
by urging that the first appeal preferred by defendant Nos.4 and
5 itself had abated and the judgment of the trial Court was in
operation. The second appeal was, accordingly, dismissed as
withdrawn.
6. The appellant thereafter sought to execute the decree
passed by the trial Court on 14.08.2006. He, accordingly, filed
Regular Darkhast No.22 of 2022 before the executing Court. The
executing Court issued notices to the judgment debtors and
thereafter heard the parties. The appellant urged that since the
first appeal preferred by defendant Nos.4 and 5 had abated, the
decree passed by the trial Court was liable to be executed. The
executing Court however found that the defendant No.5 had
expired on 20.09.2010 and the first appeal had been decided on
20.10.2010. After the death of defendant No.5 on 20.09.2010,
there was a period of ninety days for bringing his legal heirs on
record. As the first appeal was decided prior to the expiry of the
period of ninety days, it could not be said that the first appeal had
abated by virtue of the death of defendant No.5. It further
observed that if the first appeal would have been decided after
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 4 of 12
19.12.2010, then it could be said that it had abated. The
executing Court, therefore, held that the decree passed by the
trial Court having merged with the decree passed by the first
appellate Court, the appellant was not justified in seeking
execution of the decree passed by the trial Court. The execution
application preferred by the appellant came to be dismissed with
costs.
7. The appellant being aggrieved by the aforesaid order
approached the High Court by filing Writ Petition No. 5791 of
2023. The learned Judge of the High Court on 11.03.2024 upheld
the order passed by the executing Court and dismissed the said
writ petition. Being aggrieved, the appellant has come up in
appeal.
8. The appellant-in-person submits that the defendant No.4
having expired on 27.10.2006 and the defendant No.5 having
expired on 20.09.2010, their legal heirs were never brought on
record. The first appellate Court heard the learned counsel for
the parties on 28.09.2010, which was after the death of both the
defendants. The said appeal was partly allowed on 20.10.2010.
Thus, when the appeal was decided, both the appellants, namely
defendant Nos. 4 and 5 had expired and their legal heirs had not
been brought on record. As a result, the adjudication by the first
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 5 of 12
appellate Court was a nullity and the decree passed by it on
20.10.2010 could not have been executed. The decree passed
by the trial Court was the only decree holding the field. Its
execution was rightly sought by the appellant. The executing
Court erred in holding that the judgment of the first appellate
Court was legal and valid despite the death of both the
appellants. The appellant-in-person invited attention to the
provisions of Order XXII Rule 2 (2) and Rule 6 of the Code to
urge that the order passed by the executing Court was contrary
to law. The learned Judge of the High Court committed a similar
error while dismissing the writ petition. He placed reliance on the
decision in P. Chandrasekharan and others vs. S.
1
Kanakarajan and others , and prayed that the execution
proceedings be restored to enable the appellant to execute the
decree passed by the trial Court.
9. The legal heirs of the defendant Nos.4 and 5 though served
have not chosen to contest the present proceedings. Mr. Sanjeev
Kaushik, learned counsel appearing for the respondent No.3
supported the impugned order and submitted that the executing
Court rightly declined to execute the decree passed by the trial
1
2007 INSC 495
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 6 of 12
Court. The said decree having been modified by the first
appellate Court, that was the only decree that was liable to be
executed. Mr. Shrirang B. Verma, learned counsel appearing for
the respondent Nos. 1 and 2 also supported the order passed by
the executing Court as upheld by the High Court.
10. Having heard the appellant-in-person as well as the learned
counsel for the respondents, we are of the view that the
executing Court erred in dismissing the execution petition as not
maintainable. The decree passed by the first appellate Court
having been passed in an appeal, where both the appellants had
expired prior to the appeal being heard, its decree in favour of
dead persons was a nullity. The decree passed by the trial Court,
therefore, is liable to be executed.
11. It is not in dispute that the suit filed by the predecessors of
the appellant was decreed on 14.08.2006. The trial Court
declared the original plaintiffs as owners of the suit land that had
been allotted to Mr. Arjun Thakre. The plaintiffs were held entitled
to receive possession of the said lands. The subsequent
allotment of the same land in favour of defendant Nos.3 to 5 was
held to be illegal. The defendant No.3 did not choose to challenge
this decree. It is only the defendant Nos.4 and 5, who preferred
an appeal under Section 96 of the Code. During pendency of that
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 7 of 12
appeal, the defendant No.4 expired on 27.10.2006, while the
defendant No.5 expired on 20.09.2010. The record indicates that
the appeal was heard on 28.09.2010. As per the provisions of
Order XXII Rule 6 of the Code, if a party expires between the
conclusion of hearing and pronouncement of the judgment, the
same does not result in abatement of such proceedings and the
judgment on being pronounced, would have the same force and
effect as if it had been pronounced before the death of such party
took place. In view of the fact that the defendant Nos.4 and 5 had
died prior to the appeal being heard on 28.09.2010, it is evident
that the proceedings in the said appeal are not saved by the
provisions of Order XXII Rule 6 of the Code. In effect, the appeal
was decided notwithstanding the death of both the appellants,
who had preferred the appeal.
12. According to the executing Court, since the appeal was
decided on 20.10.2010, which was prior to expiry of a period of
ninety days from the death of defendant No.5 on 20.09.2010, the
appeal could not have been disposed of as abated. It is correct
that the abatement of a proceeding cannot take place prior to
expiry of the prescribed period of limitation of ninety days under
Article 120 of the Limitation Act, 1963 for bringing on record the
legal heirs. Notwithstanding this position, the fact remains that
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 8 of 12
prior to the appeal being heard and thereafter decided, both the
appellants who had filed the said appeal were no more. The
judgment pronounced in the first appeal on 20.10.2010 was,
thus, in favour of the parties who were no more alive. The said
adjudication, therefore, amounted to a nullity and the same did
not have the force of law. This position is not in doubt and we
may only refer to the decisions in Rajendra Prasad and another
2
vs. Khirodhar Mahto and others and Amba Bai and others
3
vs. Gopal and Others in this regard. The appellant, therefore,
is justified in contending that the decree passed by the first
appellate Court was a nullity as it was passed in favour of the
appealing parties, who had expired prior to the appeal being
heard and decided. As a result, the only decree that could be
enforced was the one passed by the trial Court on 14.08.2006.
13. In our view, therefore, the appellant is justified in seeking
execution of the decree passed by the trial Court on the premise
that the decree passed by the first appellate Court was a nullity
having been passed in favour of dead persons. We are fortified
in this view by the decision in Bibi Rahmani Khatoon and
2
Civil Appeal No. 2275 of 1994 decided on 11.01.1994
3
2001 INSC 263
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 9 of 12
4
others vs. Harkoo Gope and others, wherein it was held as
under:
“If a party to a proceeding either in the trial Court of
any appeal or revision dies and the right to sue
survives or a claim has to be answered, the heirs and
legal representatives of the deceased party would
have to be substituted and failure to do so would
result in abatement of proceedings. Now, if the party
to a suit dies and the abatement takes place, the suit
would abate. If a party to an appeal or revision dies
and either the appeal or revision abates, it will have
no impact on the judgment, decree or order against
which the appeal or revision is preferred. In fact, such
judgment, decree or order under appeal or revision
would become final.”
These observations though made in the context of
abatement of proceedings, the same position would arise when
the appellant/s expires prior to hearing of the appeal, which is
subsequently allowed without the legal heirs being brought on
record. In the case in hand, the judgment in favour of the
deceased appellants would be a nullity in the absence of the legal
heirs being brought on record and the judgment of the trial Court
would be the one that would govern the rights of the parties.
Hence, the decree passed by the trial Court would revive for
being executed.
4
1981 INSC 100
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 10 of 12
14. The execution proceedings herein could not have been
dismissed on the ground that the decree passed by the trial Court
was superseded by the decree passed by the first appellate
Court and was modified. Since the decree of the first appellate
Court was a nullity, the plaintiffs were entitled to execute the
decree passed by the trial Court. It is well settled that if a decree
is a nullity, its invalidity can be set up whenever and wherever it
is sought to be enforced, even at the stage of execution as held
5
in Kiran Singh and others vs. Chaman Paswan and others .
15. We may note that the legal heirs of defendant Nos.4 and 5
who had preferred the first appeal did not take any steps
whatsoever to have themselves impleaded before the first
appellate Court. Even after the appellant filed the execution
proceedings, no steps have been taken by the legal heirs of
defendant Nos.4 and 5 to have themselves impleaded. Even
before this Court, they have not chosen to contest the
proceedings. The contest by respondent No.3, who was the
defendant No.3 before the trial Court, would be of no avail as the
defendant No.3 did not challenge the decree passed by the trial
Court.
5
1954 INSC 45
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 11 of 12
16. For all these reasons, we are of the view that the executing
Court committed an error in dismissing the execution
proceedings that sought to execute the decree passed by the trial
Court. The learned Single Judge was also not justified in
upholding the order passed by the executing Court. The
appellant would be entitled to seek execution of the decree
passed in Regular Civil Suit No.181 of 2001.
Accordingly, the order dated 21.06.2023 passed by the
executing Court in Regular Darkhast No.22 of 2022 as well as
the order passed by the High Court in Writ Petition No.5791 of
2023 on 11.03.2024 are set aside. The execution proceedings
are restored for being decided in accordance with law by the
executing Court. The civil appeal is allowed in aforesaid terms
leaving the parties to bear their own costs.
…………………………………………..J.
[PAMIDIGHANTAM SRI NARASIMHA]
…..………………………..J.
[ATUL S. CHANDURKAR]
NEW DELHI,
NOVEMBER 06, 2025.
Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 12 of 12