{"id":247354,"date":"2001-05-08T00:00:00","date_gmt":"2001-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amba-bai-and-others-vs-gopal-and-others-on-8-may-2001"},"modified":"2015-12-14T05:45:29","modified_gmt":"2015-12-14T00:15:29","slug":"amba-bai-and-others-vs-gopal-and-others-on-8-may-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amba-bai-and-others-vs-gopal-and-others-on-8-may-2001","title":{"rendered":"Amba Bai And Others vs Gopal And Others on 8 May, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Amba Bai And Others vs Gopal And Others on 8 May, 2001<\/div>\n
Author: Balakrishnan<\/div>\n
Bench: U.C. Banerjee, K.G. Balakrishnan<\/div>\n
           CASE NO.:\nAppeal (civil) 4156  of  1998\n\n\n\nPETITIONER:\nAMBA BAI AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nGOPAL AND OTHERS\n\nDATE OF JUDGMENT:\t08\/05\/2001\n\nBENCH:\nU.C. Banerjee & K.G. Balakrishnan\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Balakrishnan, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    This  appeal is directed against the Order passed by the
\nlearned\t Single\t Judge of the Rajasthan High Court in  Civil
\nRevision Petition No.  599\/1996.  One Laxmi Lal filed a suit
\nfor  specific  performance against one Radhu Lal.  The\tsuit
\nwas dismissed by the Trial Court.  Plaintiff Laxmi Lal filed
\nan  appeal  and\t the Appellate Court allowed  the  same\t and
\ndecreed\t the  suit.  Aggrieved by the same, defendant  Radhu
\nLal  preferred a Second Appeal in the High Court against the
\ndecree\tgranting specific performance.\tDuring the  pendency
\nof the Second Appeal, plaintiff Laxmi Lal died and his legal
\nrepresentatives were brought on record as respondents in the
\nSecond Appeal.\tIt is admitted by the parties that while the
\nSecond\tAppeal was pending, Radhu Lal died on 14.12.1990 and
\nthis fact was not brought to the notice of the Court and the
\nappeal\twas dismissed on 23.5.1991.  The legal heirs of\t the
\ndeceased  Radhu\t Lal  did  not take any steps  to  have\t the
\njudgment  in  the  Second  Appeal   set\t aside.\t  The  legal
\nrepresentatives\t of  the  decree-holder\t  Laxmi\t Lal   filed
\nExecution  Case No.  3\/93 against the legal  representatives
\nof  the\t deceased  Radhu Lal.  They resisted  the  execution
\napplication  and  contended that the decree under  execution
\nwas one passed by the High Court in the Second Appeal and as
\nthe appellant had died prior to the passing of the Judgment,
\nthe  decree and the judgment passed against the dead  person
\nwas  a\tnullity\t and hence, it could not be  executed.\t The
\nSubordinate  Judge  declined to accept this  contention\t and
\nheld  that  the execution proceedings had been initiated  in
\naccordance  with  the decree which was passed by  the  First
\nAppellate  Court and the High Court had not carried out\t any
\namendment  in  the  decree and, therefore, the\tquestion  of
\nmerger\tof the decree of the First Appellate Court with\t the
\ndecree\tpassed\tby the Second Appellate Court did not  arise
\nand  the  Second Appeal preferred by the deceased Radhu\t Lal
\nhad abated as no legal heirs were brought on record within a
\nperiod of 90 days.\n<\/p>\n
    This  order\t of  the Subordinate  Judge  was  challenged
\nbefore\tthe  High Court in Revision and the  learned  Single
\nJudge  of the High Court held that the decree passed in\t the
\nSecond\tAppellate Court was a nullity as it had been  passed
\nagainst\t the dead person and this decree had merged with the
\ndecree\tpassed in the First Appellate Court.  Therefore,  it
\nwas  held  that the decree under execution was a nullity  in
\nthe eye of law, and the execution proceedings were liable to
\nbe  dismissed.\tThis finding of the learned Single Judge  is
\nchallenged before us.\n<\/p>\n
    We\theard  the learned senior Counsel for the  appellant
\nMr.   Tapas C.\tRay and also the Counsel for the Respondent,
\nMr.   Ashok Mathur.  The Counsel for the appellant contended
\nthat  the learned Single Judge committed a serious error  of
\nlaw  in holding that there was a merger of the decree passed
\nby  the\t High  Court in the Second Appeal with that  of\t the
\ndecree\tpassed\tin the First Appeal.  It was argued that  as
\nthe  second  appellant Radhu Lal died while the\t appeal\t was
\npending\t and no steps were taken by his legal heirs to\tcome
\non record as appellants, the Second Appeal should be treated
\nto  have abated and when the Second Appeal had abated, there
\nwas  no question of any merger of the First Appellate decree
\nwith  the  order,  if  any, passed  in\tthe  Second  Appeal.
\nAccording to the appellants’ Counsel, there was no decree at
\nall  in\t the  Second Appeal and the judgment passed  in\t the
\nSecond\tAppeal is a nullity as it had been passed against  a
\ndead  person.  The Counsel for the respondents, on the other
\nhand,  contended that the Second Appeal was dismissed by the
\nlearned\t Single\t Judge\tat  a time when\t the  appellant\t was
\nalready\t dead and such a judgment being a nullity in the eye
\nof  law,  it  was  argued that the  Second  Appeal  being  a
\ncontinuation  of  the proceedings of the suit and  that\t the
\nfinal  order having been passed by the learned Single  Judge
\nbeing  a  nullity in the eye of law, there is no  decree  as
\nsuch  which  is capable of being executed.  The Counsel\t for
\nthe respondents submitted that the execution proceedings are
\nwithout\t any  basis  and  thus, he  supported  the  impugned
\njudgment.\n<\/p>\n
    Order  22 Rule 3 of the Civil Procedure Code  prescribes
\nthe  procedure in case of death of one of several plaintiffs
\nor  of\tsole plaintiff.\t It states that where one of two  or
\nmore  plaintiffs dies and the right to sue does not  survive
\nto  the\t surviving plaintiff or plaintiffs alone, or a\tsole
\nplaintiff or sole-surviving plaintiff dies, and the right to
\nsue  survives,\tthe  Court, on an application made  in\tthat
\nbehalf, shall cause the legal representative of the deceased
\nplaintiff  to  be  made a party and shall proceed  with\t the
\nsuit.  Rule 3(2) of Order 22 says that where within the time
\nlimited\t by  law no application is made under sub-rule\t(1),
\nthe  suit  shall abate so far as the deceased  plaintiff  is
\nconcerned,  and,  on the application of the  defendant,\t the
\nCourt  may award to him the costs which he may have incurred
\nin defending the suit to be recovered from the estate of the
\ndeceased  plaintiff.   Rule  11 of Order 22  says  that\t the
\nprovisions  contained  in  Order 22 shall be  applicable  to
\nappeals\t and so far as the word “plaintiff” shall be held to
\ninclude\t an appellant, the word “defendant” shall be held to
\ninclude respondent and the word “suit” an appeal.\n<\/p>\n
    Rule  9 of Order 22 states about the effect of abatement
\nor dismissal.  Rule 9 is to the following effect:-\n<\/p>\n
    “(1)  Where\t a  suit abates or is dismissed\t under\tthis
\nOrder,\tno fresh suit shall be brought on the same cause  of
\naction.\n<\/p>\n
    (2) The plaintiff or the person claiming to be the legal
\nrepresentative\tof  a deceased plaintiff or the assignee  or
\nthe receiver in the case of an insolvent plaintiff may apply
\nfor  an order to set aside the abatement or dismissal;\t and
\nif  it\tis  proved that he was prevented by  any  sufficient
\ncause  from  continuing the suit, the Court shall set  aside
\nthe  abatement\tor dismissal upon such terms as to costs  or
\notherwise as it thinks fit.”\n<\/p>\n
    The\t various  provisions  contained in  Order  22,\tCPC,
\nexplain\t the  consequences  of death of parties in  a  civil
\nlitigation.   If one of the plaintiffs dies and if the cause
\nof  action  survives  his legal representatives have  got  a
\nright to come on record and to continue the proceedings.  If
\nthe sole plaintiff dies and if the legal representatives are
\nnot  brought  on record, the suit will abate and Rule  9  of
\nOrder  22  CPC specifically prohibits the filing of a  fresh
\nsuit on the same cause of action.  The only remedy available
\nto  the legal representatives is to get themselves impleaded
\nand  continue  the proceedings, if the suit is\talready\t not
\nabated,\t and if abated, they have to file an application  to
\nset aside abatement also.\n<\/p>\n
    In\tthe  instant  case, deceased Radhu Lal,\t the  second
\nappellant  died on 14.12.1990 and his death was not  brought
\nto  the\t notice\t of the Court and the learned  Single  Judge
\ndisposed  of  the appeal on merits by dismissing the  Second
\nAppeal\ton 25.3.1991.  As the Judgment in the Second  Appeal
\nwas  passed  without  the knowledge that the  appellant\t had
\ndied,  the  same  being a judgment passed against  the\tdead
\nperson\tis  a nullity.\tWhen the second appellant Radhu\t Lal
\ndied  on  14.12.1990, his legal representatives\t could\thave
\ntaken steps to get themselves impleaded in the Second Appeal
\nproceedings and as it was not done, the Second Appeal should
\nbe taken to have abated by operation of law.  Therefore, the
\nquestion  that requires to be considered is that when  there
\nwas abatement of the Second Appeal, can there be a merger of
\nthe  same  with\t the decree passed by  the  First  Appellate
\nCourt?\n<\/p>\n
    Before  considering\t the question of merger, we have  to
\nconsider  the  effect of abatement.  When the Second  Appeal
\nhad  abated  and the legal representatives of the  appellant
\nwere  not brought on record, the decree, which was passed by
\nthe  First  Appellate  Court,  would  acquire  finality.   A
\nsimilar\t matter came up before this Court in Rajendra Prasad
\nand  another Vs.  Khirodhar Mahto and Others 1994 Supp.\t (3)
\nSCC  314  wherein it was held that as a consequence  of\t the
\nabatement  of  the  appeal filed against final decree  in  a
\npartition  suit, the preliminary decree would become  final.
\nIn that case, the appellants and Tapeshari Kuer filed a suit
\nfor  partition of immovable properties, including plaint 4 &
\n5  properties.\t The  property originally  belonged  to\t one
\nBishni\tMahto.\t He had two sons namely Sheobaran Mahto\t and
\nRamyad\tMahto.\t Tapeshari Kuer was the daughter  of  Ramyad
\nMahto.\tPlaint 4 & 5 properties were not partitioned between
\nthese two sons of Bishni Mahto.\t Ramyad Mahto, the father of
\nTapeshari Kuer died and she succeeded to the one half of the
\nundivided  share of the two sons of Bishni Mahto.  Tapeshari
\nKuer  had  executed a gift deed in favour of the  appellants
\nbequeathing her undivided interest inherited from her father
\nin  respect of plaint item no.\t4 property.  The Trial Court
\ndecreed\t the suit declaring the half share of Tapeshari Keur
\nin  plaint 5 of the property.  Appellants who had joined  as
\nplaintiffs 1 & 2 were held to have half share in plaint item
\nno.   4\t by  virtue of the gift deed executed by  her.\t The
\ndefendants  in the suit filed an appeal and pending  appeal,
\nTapeshari  Kuer\t died.\tHer legal heirs were not brought  on
\nrecord.\t  The Appellate Court gave a finding that  Tapeshari
\nKeur  was not the daughter of Ramyad Mahto and the appellant
\ndid  not  acquire any interest in the undivided share.\t The
\nsuit was dismissed.  The original plaintiffs 1 & 2 filed the
\nSecond\tAppeal before the High Court.  The Second Appeal was
\ndismissed,  as the heirs of Tapeshari Keur were not  brought
\non record.  The original plaintiffs 1 & 2 carried the matter
\nto  this Court by special leave.  It was contended that\t the
\nplaintiffs 1 & 2 were entitled to the benefit of preliminary
\ndecree.\t  Ultimately, this Court held that whether Tapeshari
\nKeur was the daughter of Ramyad Mahto or not was required to
\nbe  gone  into\tonly  when her\tlegal  representatives\twere
\nbrought\t on  record.  It was held that the decree against  a
\ndead person was a nullity and, therefore, the declaration by
\nthe  First  Appellate  Court that Tapeshari Keur was  not  a
\ndaughter  of  Ramyad Mahto was not valid in law.   The\tHigh
\nCourt  had held that the decree of the Appellate Court was a
\nnullity\t and the respondent did not file any appeal  against
\nthat part of the decree, the result was that the preliminary
\ndecree became final.\n<\/p>\n
    In\tRahmani\t Khatoon Vs.  Harkoo Gope AIR 1981 SC  1450,
\nthis Court held at page 1453 at para 10 as under:-\n<\/p>\n
    “The  concept of abatement is known to civil law.  If  a
\nparty  to  a  proceeding either in the trial  court  or\t any
\nappeal\tor revision dies and the right to sue survives or  a
\nclaim\thas   to   be  answered,   the\t heirs\t and   legal
\nrepresentatives\t of  the  deceased party would\thave  to  be
\nsubstituted  and failure to do so would result in  abatement
\nof  proceedings.   Now, if the party to a suit dies and\t the
\nabatement  takes place, the suit would abate.  If a party to
\nan appeal or revision dies and either the appeal or revision
\nabates,\t it  will have no impact on the judgment  decree  or
\norder against which the appeal or revision is preferred.  In
\nfact,  such  judgment,\tdecree\tor  order  under  appeal  or
\nrevision would become final.”\n<\/p>\n
    The\t learned  Single  Judge\t of the High  Court  in\t the
\nimpugned  order\t held  that the order passed  in  the  first
\nappellate  decree merged into the order passed in the Second
\nAppeal\tand  hence  there  is no  executable  decree.\t“The
\ndoctrince   of\tmerger\tarise  only   when  there  are\t two
\nindependent  things and the greater one would swallow up  or
\nmay  extinct the lesser one by the process of absorption.\n<\/p>\n
    ”  [  “Law Lexicon” by P.  Ramanatha Aiyar – page  1224,
\n2nd Edition ].\n<\/p>\n
    If\tthe  Judgement\tor  order of an\t inferior  Court  is
\nsubjected to an appeal or revision by the superior court and
\nin  such proceeedings the order or judgment is passed by the
\nsuperior  court determining the rights of parties, it  would
\nsupersede  the\torder  or judgment passed  by  the  inferior
\ncourt.\t The  juristic\tjustification for such\tdoctrine  of
\nmerger\tis  based  on the common law  principle\t that  there
\ncannot be, at one and the same time, more than one operative
\norder  governing the subject matter and the judgment of\t the
\ninferior  court\t is deemed to lose its identity\t and  merges
\nwith  the judgment of the superior court.  In the course  of
\ntime,  this  concept  which  was  originally  restricted  to
\nappellate   decrees  on\t the  ground   that  an\t appeal\t  is
\ncontinuation  of the suit, came to be gradually extended  to
\nother  proceedings  like Revisions and even the\t proceedings
\nbefore quasi- judicial and executive authorities.\n<\/p>\n
    This  Court\t in State of Madras Vs.\t Madurai  Mills\t co.
\nLtd.  AIR 1967 SC 681, observed as under:-\n<\/p>\n
    “The  doctrine of merger is not a doctrine of rigid\t and
\nuniversal  application\tand it cannot be said that  wherever
\nthere  are two orders, one by the inferior authority and the
\nother  by  a  superior\tauthority, passed in  an  appeal  or
\nrevision,  there  is  a\t fusion\t or  merger  of\t two  orders
\nirrespective  of  the  subject-matter of  the  appellate  or
\nrevisional  order  and the scope of the appeal\tor  revision
\ncontemplated  by the particular statute.  The application of
\nthe  doctrine  depends\ton the nature of  the  appellate  or
\nrevisional order in each case and the scope of the statutory
\nprovisions   conferring\t  the\t appellate   or\t  revisional
\njurisdiction.”\n<\/p>\n
    In a recent decision in Kunhayammed vs.  State of Kerala<\/a>
\n2000  (6) SCC 359, this Court held that an order  dismissing
\nspecial leave petition, more so when it is by a non-speaking
\norder,\tdoes not result in merger of the order impugned into
\nthe order of the Supreme Court.\n<\/p>\n
    In\tthe  instant  case,  there is  no  question  of\t the
\napplication  of\t the  doctrine\tof merger.   As\t the  second
\nappellant  Radhulal died during the pendency of the  appeal,
\nand in the absence of his legal heirs having taken any steps
\nto  prosecute  the Second Appeal, the decree passed  by\t the
\nFirst  Appellate Court must be deemed to have become  final.
\nBy  virtue of the order passed by the First Appellate Court,
\nthe  plaintiff’s suit for specific performance was  decreed.
\nFailure\t on  the part of the legal heirs of Radhulal to\t get
\nthemselves  impleaded  in the Second Appeal and\t pursue\t the
\nmatter\t  further   shall    not    adversely\taffect\t the
\nplaintiff-decree  holder as it would be against the  mandate
\nof  Rule  9  of\t Order 22, Code\t of  Civil  Procedure.\t The
\nimpugned order is, therefore, not sustainable in law and the
\nsame  is set aside and the appeal is allowed.  The Executing
\nCourt  may proceed with the execution proceedings.   Parties
\nto bear their respective costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Amba Bai And Others vs Gopal And Others on 8 May, 2001 Author: Balakrishnan Bench: U.C. Banerjee, K.G. Balakrishnan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247354","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAmba Bai And Others vs Gopal And Others on 8 May, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/amba-bai-and-others-vs-gopal-and-others-on-8-may-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amba Bai And Others vs Gopal And Others on 8 May, 2001 - 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