CASE NO.: Appeal (civil) 4156 of 1998 PETITIONER: AMBA BAI AND OTHERS Vs. RESPONDENT: GOPAL AND OTHERS DATE OF JUDGMENT: 08/05/2001 BENCH: U.C. Banerjee & K.G. Balakrishnan JUDGMENT:
Balakrishnan, J.
L…I…T…….T…….T…….T…….T…….T…….T..J
This appeal is directed against the Order passed by the
learned Single Judge of the Rajasthan High Court in Civil
Revision Petition No. 599/1996. One Laxmi Lal filed a suit
for specific performance against one Radhu Lal. The suit
was dismissed by the Trial Court. Plaintiff Laxmi Lal filed
an appeal and the Appellate Court allowed the same and
decreed the suit. Aggrieved by the same, defendant Radhu
Lal preferred a Second Appeal in the High Court against the
decree granting specific performance. During the pendency
of the Second Appeal, plaintiff Laxmi Lal died and his legal
representatives were brought on record as respondents in the
Second Appeal. It is admitted by the parties that while the
Second Appeal was pending, Radhu Lal died on 14.12.1990 and
this fact was not brought to the notice of the Court and the
appeal was dismissed on 23.5.1991. The legal heirs of the
deceased Radhu Lal did not take any steps to have the
judgment in the Second Appeal set aside. The legal
representatives of the decree-holder Laxmi Lal filed
Execution Case No. 3/93 against the legal representatives
of the deceased Radhu Lal. They resisted the execution
application and contended that the decree under execution
was one passed by the High Court in the Second Appeal and as
the appellant had died prior to the passing of the Judgment,
the decree and the judgment passed against the dead person
was a nullity and hence, it could not be executed. The
Subordinate Judge declined to accept this contention and
held that the execution proceedings had been initiated in
accordance with the decree which was passed by the First
Appellate Court and the High Court had not carried out any
amendment in the decree and, therefore, the question of
merger of the decree of the First Appellate Court with the
decree passed by the Second Appellate Court did not arise
and the Second Appeal preferred by the deceased Radhu Lal
had abated as no legal heirs were brought on record within a
period of 90 days.
This order of the Subordinate Judge was challenged
before the High Court in Revision and the learned Single
Judge of the High Court held that the decree passed in the
Second Appellate Court was a nullity as it had been passed
against the dead person and this decree had merged with the
decree passed in the First Appellate Court. Therefore, it
was held that the decree under execution was a nullity in
the eye of law, and the execution proceedings were liable to
be dismissed. This finding of the learned Single Judge is
challenged before us.
We heard the learned senior Counsel for the appellant
Mr. Tapas C. Ray and also the Counsel for the Respondent,
Mr. Ashok Mathur. The Counsel for the appellant contended
that the learned Single Judge committed a serious error of
law in holding that there was a merger of the decree passed
by the High Court in the Second Appeal with that of the
decree passed in the First Appeal. It was argued that as
the second appellant Radhu Lal died while the appeal was
pending and no steps were taken by his legal heirs to come
on record as appellants, the Second Appeal should be treated
to have abated and when the Second Appeal had abated, there
was no question of any merger of the First Appellate decree
with the order, if any, passed in the Second Appeal.
According to the appellants’ Counsel, there was no decree at
all in the Second Appeal and the judgment passed in the
Second Appeal is a nullity as it had been passed against a
dead person. The Counsel for the respondents, on the other
hand, contended that the Second Appeal was dismissed by the
learned Single Judge at a time when the appellant was
already dead and such a judgment being a nullity in the eye
of law, it was argued that the Second Appeal being a
continuation of the proceedings of the suit and that the
final order having been passed by the learned Single Judge
being a nullity in the eye of law, there is no decree as
such which is capable of being executed. The Counsel for
the respondents submitted that the execution proceedings are
without any basis and thus, he supported the impugned
judgment.
Order 22 Rule 3 of the Civil Procedure Code prescribes
the procedure in case of death of one of several plaintiffs
or of sole plaintiff. It states that where one of two or
more plaintiffs dies and the right to sue does not survive
to the surviving plaintiff or plaintiffs alone, or a sole
plaintiff or sole-surviving plaintiff dies, and the right to
sue survives, the Court, on an application made in that
behalf, shall cause the legal representative of the deceased
plaintiff to be made a party and shall proceed with the
suit. Rule 3(2) of Order 22 says that where within the time
limited by law no application is made under sub-rule (1),
the suit shall abate so far as the deceased plaintiff is
concerned, and, on the application of the defendant, the
Court may award to him the costs which he may have incurred
in defending the suit to be recovered from the estate of the
deceased plaintiff. Rule 11 of Order 22 says that the
provisions contained in Order 22 shall be applicable to
appeals and so far as the word “plaintiff” shall be held to
include an appellant, the word “defendant” shall be held to
include respondent and the word “suit” an appeal.
Rule 9 of Order 22 states about the effect of abatement
or dismissal. Rule 9 is to the following effect:-
“(1) Where a suit abates or is dismissed under this
Order, no fresh suit shall be brought on the same cause of
action.
(2) The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff or the assignee or
the receiver in the case of an insolvent plaintiff may apply
for an order to set aside the abatement or dismissal; and
if it is proved that he was prevented by any sufficient
cause from continuing the suit, the Court shall set aside
the abatement or dismissal upon such terms as to costs or
otherwise as it thinks fit.”
The various provisions contained in Order 22, CPC,
explain the consequences of death of parties in a civil
litigation. If one of the plaintiffs dies and if the cause
of action survives his legal representatives have got a
right to come on record and to continue the proceedings. If
the sole plaintiff dies and if the legal representatives are
not brought on record, the suit will abate and Rule 9 of
Order 22 CPC specifically prohibits the filing of a fresh
suit on the same cause of action. The only remedy available
to the legal representatives is to get themselves impleaded
and continue the proceedings, if the suit is already not
abated, and if abated, they have to file an application to
set aside abatement also.
In the instant case, deceased Radhu Lal, the second
appellant died on 14.12.1990 and his death was not brought
to the notice of the Court and the learned Single Judge
disposed of the appeal on merits by dismissing the Second
Appeal on 25.3.1991. As the Judgment in the Second Appeal
was passed without the knowledge that the appellant had
died, the same being a judgment passed against the dead
person is a nullity. When the second appellant Radhu Lal
died on 14.12.1990, his legal representatives could have
taken steps to get themselves impleaded in the Second Appeal
proceedings and as it was not done, the Second Appeal should
be taken to have abated by operation of law. Therefore, the
question that requires to be considered is that when there
was abatement of the Second Appeal, can there be a merger of
the same with the decree passed by the First Appellate
Court?
Before considering the question of merger, we have to
consider the effect of abatement. When the Second Appeal
had abated and the legal representatives of the appellant
were not brought on record, the decree, which was passed by
the First Appellate Court, would acquire finality. A
similar matter came up before this Court in Rajendra Prasad
and another Vs. Khirodhar Mahto and Others 1994 Supp. (3)
SCC 314 wherein it was held that as a consequence of the
abatement of the appeal filed against final decree in a
partition suit, the preliminary decree would become final.
In that case, the appellants and Tapeshari Kuer filed a suit
for partition of immovable properties, including plaint 4 &
5 properties. The property originally belonged to one
Bishni Mahto. He had two sons namely Sheobaran Mahto and
Ramyad Mahto. Tapeshari Kuer was the daughter of Ramyad
Mahto. Plaint 4 & 5 properties were not partitioned between
these two sons of Bishni Mahto. Ramyad Mahto, the father of
Tapeshari Kuer died and she succeeded to the one half of the
undivided share of the two sons of Bishni Mahto. Tapeshari
Kuer had executed a gift deed in favour of the appellants
bequeathing her undivided interest inherited from her father
in respect of plaint item no. 4 property. The Trial Court
decreed the suit declaring the half share of Tapeshari Keur
in plaint 5 of the property. Appellants who had joined as
plaintiffs 1 & 2 were held to have half share in plaint item
no. 4 by virtue of the gift deed executed by her. The
defendants in the suit filed an appeal and pending appeal,
Tapeshari Kuer died. Her legal heirs were not brought on
record. The Appellate Court gave a finding that Tapeshari
Keur was not the daughter of Ramyad Mahto and the appellant
did not acquire any interest in the undivided share. The
suit was dismissed. The original plaintiffs 1 & 2 filed the
Second Appeal before the High Court. The Second Appeal was
dismissed, as the heirs of Tapeshari Keur were not brought
on record. The original plaintiffs 1 & 2 carried the matter
to this Court by special leave. It was contended that the
plaintiffs 1 & 2 were entitled to the benefit of preliminary
decree. Ultimately, this Court held that whether Tapeshari
Keur was the daughter of Ramyad Mahto or not was required to
be gone into only when her legal representatives were
brought on record. It was held that the decree against a
dead person was a nullity and, therefore, the declaration by
the First Appellate Court that Tapeshari Keur was not a
daughter of Ramyad Mahto was not valid in law. The High
Court had held that the decree of the Appellate Court was a
nullity and the respondent did not file any appeal against
that part of the decree, the result was that the preliminary
decree became final.
In Rahmani Khatoon Vs. Harkoo Gope AIR 1981 SC 1450,
this Court held at page 1453 at para 10 as under:-
“The concept of abatement is known to civil law. If a
party to a proceeding either in the trial court or 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.”
The learned Single Judge of the High Court in the
impugned order held that the order passed in the first
appellate decree merged into the order passed in the Second
Appeal and hence there is no executable decree. “The
doctrince of merger arise only when there are two
independent things and the greater one would swallow up or
may extinct the lesser one by the process of absorption.
” [ “Law Lexicon” by P. Ramanatha Aiyar – page 1224,
2nd Edition ].
If the Judgement or order of an inferior Court is
subjected to an appeal or revision by the superior court and
in such proceeedings the order or judgment is passed by the
superior court determining the rights of parties, it would
supersede the order or judgment passed by the inferior
court. The juristic justification for such doctrine of
merger is based on the common law principle that there
cannot be, at one and the same time, more than one operative
order governing the subject matter and the judgment of the
inferior court is deemed to lose its identity and merges
with the judgment of the superior court. In the course of
time, this concept which was originally restricted to
appellate decrees on the ground that an appeal is
continuation of the suit, came to be gradually extended to
other proceedings like Revisions and even the proceedings
before quasi- judicial and executive authorities.
This Court in State of Madras Vs. Madurai Mills co.
Ltd. AIR 1967 SC 681, observed as under:-
“The doctrine of merger is not a doctrine of rigid and
universal application and it cannot be said that wherever
there are two orders, one by the inferior authority and the
other by a superior authority, passed in an appeal or
revision, there is a fusion or merger of two orders
irrespective of the subject-matter of the appellate or
revisional order and the scope of the appeal or revision
contemplated by the particular statute. The application of
the doctrine depends on the nature of the appellate or
revisional order in each case and the scope of the statutory
provisions conferring the appellate or revisional
jurisdiction.”
In a recent decision in Kunhayammed vs. State of Kerala
2000 (6) SCC 359, this Court held that an order dismissing
special leave petition, more so when it is by a non-speaking
order, does not result in merger of the order impugned into
the order of the Supreme Court.
In the instant case, there is no question of the
application of the doctrine of merger. As the second
appellant Radhulal died during the pendency of the appeal,
and in the absence of his legal heirs having taken any steps
to prosecute the Second Appeal, the decree passed by the
First Appellate Court must be deemed to have become final.
By virtue of the order passed by the First Appellate Court,
the plaintiff’s suit for specific performance was decreed.
Failure on the part of the legal heirs of Radhulal to get
themselves impleaded in the Second Appeal and pursue the
matter further shall not adversely affect the
plaintiff-decree holder as it would be against the mandate
of Rule 9 of Order 22, Code of Civil Procedure. The
impugned order is, therefore, not sustainable in law and the
same is set aside and the appeal is allowed. The Executing
Court may proceed with the execution proceedings. Parties
to bear their respective costs.
