Appellate Court's Decree Passed In Favour Of Dead Appellants Who Had Expired Before Appeal Was Heard Is Nullity: Supreme Court

The appellant, who is the legal heir of the original plaintiffs, sought to execute the decree passed by the trial Court in favour of the original plaintiffs. The executing Court, however, refused to permit execution of the decree passed by the trial Court on the ground that the appeal preferred by the defendants could not be stated to have abated notwithstanding the death of the defendants prior to the hearing of the first appeal.

The Division Bench of Justice Pamidighantam Sri Narasimha and Justice Atul S. Chandurkar held, "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."

“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 others vs. Harkoo Gope and others…”, it added.

The Appellant appeared in-person while Advocate Shrirang B. Varma represented the Respondent.

Factual Background

It was the case of the appellant that his predecessor was allotted agricultural land 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 to the third, fourth and fifth defendants. The legal heirs of late Thakre filed a suit for a declaration, and the trial Court decreed the suit by holding the allotment of the suit land in favour of the defendants to be illegal. It also declared that the predecessor of the plaintiffs was allotted the said land and his legal heirs were the owners of the same. Accordingly, a decree for possession of the said land was passed in their favour.

The fourth and fifth defendants being aggrieved by the aforesaid decree, preferred an appeal under Section 96 of the Code of Civil Procedure, 1908. Before the Civil Appeal could be heard, the fourth and the fifth defendants died. The first appeal was partly allowed. 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 late Arjunrao Thakre. The original plaintiffs preferred a second appeal under Section 100. The said appeal came to be disposed of by the Registrar (Judicial) as abated against the fourth and fifth defendants.

The original plaintiffs sought restoration of the second appeal by urging that the first appeal preferred by the defendants itself had abated. The High Court restored the second appeal, but the same was later dismissed as withdrawn. The appellant sought to execute the decree passed by the trial Court. The executing Court, 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. Being aggrieved by the dismissal of the petition by the High Court, the appellant approached the Apex Court.

Reasoning

Considering that the decree passed by the first appellate Court had been passed in an appeal, where both the appellants had expired prior to the appeal being heard, the Bench held that its decree in favour of dead persons was a nullity. As per the Bench, the decree passed by the trial Court was liable to be executed.

The Bench noted that, as per the executing Court, since the appeal was decided on October 20, 2010, which was before the expiry of a period of ninety days from the death of the fifth defendant on September 20, 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 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”, it added.

“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 in Kiran Singh and others vs. Chaman Paswan and others”, it noted.

The Bench also noticed that the legal heirs of the fourth and fifth defendants, who had preferred the first appeal, did not take any steps whatsoever to have themselves impleaded before the first appellate Court. It was noticed that even after the appellant filed the execution proceedings, no steps were taken by the legal heirs of the defendants 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”, it mentioned.

Holding that the executing Court committed an error in dismissing the execution proceedings that sought to execute the decree passed by the trial Court, the Bench held that the appellant would be entitled to seek execution of the decree passed in the Regular Civil Suit. Thus, setting aside the impugned judgments, the Bench allowed the civil appeal and restored the execution proceedings.

Cause Title: Vikram Bhalchandra Ghongade Appellant v. The State of Maharashtra & Ors (Neutral Citation: 2025 INSC 1283)

Appearance

Appellant: Petitioner-in-person

Respondent: Advocates Shrirang B. Varma, Siddharth Dharmadhikari, AOR Aaditya Aniruddha Pande, AOR Astha Sharma, Advocates Sanjeev Kaushik, Simranjeet Singh Rekhi, Jyotika, Aaditya Aniruddha Pande, AOR Astha Sharma

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