Law Web: Whether Judgment delivered by a Court in abated Appeal is nullity?

In the backdrop of the aforesaid legal position and particularly in

view of the fact that the Supreme Court has repeatedly held that a

Judgment delivered by a Court in an Appeal which abates in its entirety is

a nullity and such an Appeal cannot be decided on merits on account of

abatement of Appeal against one of the parties to the Appeal where the

right to sue survives and in view of the nature of the Decree which was

sought being a decree jointly sought against the Defendant Nos. 1 to 6,

the only conclusion which is inevitable is that on account of the death of

Tanaji during the pendency of the 2 First Appeals in the District Court and

on account of the failure of the Appellants to bring the heirs of Tanaji on

record within a period of 90 days after his death, even though the said

Appellants may not be aware of the death, the Appeals abated as against

him and considering the nature of the dispute, the entire Appeals ought to

have been held to have abated and dismissed. Thus, the Judgment

delivered by the Learned Judge of the District Court dismissing the

Regular Civil Appeal No. 470 of 1994 filed by the original Plaintiffs in the

Suit is a Judgment which will have to be treated as a nullity and I hold

accordingly. When a Judgment is treated to be a nullity it really does not

exist in the eyes of law.

Bombay High Court

Unknown vs Smt. Yashoda Jagannath Ghorpade on 21 October, 2011

Bench: G. S. Godbole

1. On 15/9/2011 I had passed following order :

"1. Heard Mr. Dilip Bodke, Advocate for the Appellants/Applicants and Mr. Uday Warunjikar, Advocate for Respondent Nos. 3 A to 3C. In the peculiar facts of this case, which will be narrated by me hereinafter without issuing formal rule on this Civil Application, this Civil Application and the Second Appeal are proposed to be disposed of by framing questions of law in the Second Appeal. It is therefore, necessary to narrate a few facts.

2. Yashoda Jagannath Ghorpade and Godabai @ Shashikala Uttam Dhane who are Respondent Nos. 1 and 2 in the Second Appeal had filed R.C.Suit No. 34 of 1988 in the Court of Civil Judge, Sr. Division, Satara for specific performance of an Agreement of re-conveyance, possession and mesne profits. Tanaji Ghorpade was impleaded as Defendant No. 3. Eknath Ghorpade was impleaded as Defendant No. 7. Said Eknath died during the pendency of the Suit and hence Defendant Nos. 7-1 to 7-3 who are Respondent Nos. 3(a) to 3(c) in this Second Appeal were brought on record as heirs of the Defendant No. 7 Eknath. They filed purshis Exh. 28 and supported the original Plaintiffs.

3. By Judgment and Order dated 6/9/1994, Learned II Jt. CJJD, Satara dismissed the Suit.

4. Aggrieved by this Decree of dismissal, original Plaintiffs filed Regular Civil Appeal No. 470 of 1994 in the District Court at Satara and in the said Appeal, the heirs of original Defendant No. 7 were impleaded as Respondent Nos. 7a to 7c. The said heirs independently filed Regular Civil Appeal No. 510 of 1994 in the District Court at Satara. Ordinarily, both the Appeals arising out of the same Judgment and Decree ought to have been clubbed 4 sa154.10

together, heard together and disposed off by a common Judgment. However, that does not appear to have been done and Regular Civil Appeal No. 470 of 1994 filed by the original Plaintiffs was heard first. It appears that during the pendency of the said Appeal, original Defendant No. 3 Tanaji who was Respondent No. 3 in Civil Appeal No. 470 of 1994 died on 15/6/1998 but his heirs were not brought on record. Consequently the said Appeal abated as against the said Respondent No.3 Tanaji. Nevertheless, hearing of the Appeal proceeded and by Judgment and Order dated 24/9/2004, the learned IInd Ad-hoc Additional District Judge, Satara dismissed the said R.C. Appeal No. 470 of 1994 filed by the original Plaintiffs. This Order was challenged by the original Plaintiffs by filing Second Appeal No. 927 of 2005 in this Court and the learned Single Judge (P.V. Kakade, J) dismissed the Second Appeal by Judgment and Order dated 6/9/2005 at the stage of admission itself. The said order reads thus :

"1. The appellants have preferred this appeal against the judgment and order passed by the Addl. District Judge, Satara, dismissing the appeal and confirming the judgment and order passed by the Civil Judge, J.D., Satara, dismissing the plaintiffs' suit for specific performance.

2. I have heard the learned counsel for the appellants. Perused the record including the judgments of both the Courts below.

3. The plaintiffs filed the suit for specific performance of the contract which was executed on 8.5.1956 in which the suit for specific performance came to be filed on 11.1.1988 i.e. about 32 years after the execution of the document. Both the Courts below have come to the conclusion that the suit is barred by the law of limitation. Without further elaboration, with regard to the facts involved, it is evident position that the plaintiffs' witness in his cross-examination has admitted that deceased Eknath had gone to the house of defendants with money and demanded them to reconvey the suit land showing his readiness to repay the consideration amount and at that time the defendants refused to 5 sa154.10

reconvey the suit property in their favour on the basis of the agreement of 1956 Exh.61 and, therefore, though the terms of agreement showed that there was no specific time limit fixed for the performance of contract, the suit is clearly hit by the provision of Art.54 of the Limitation Act and, as such the suit should have been filed within three years from the date of refusal of specific performance of the contract by the other side. On this ground alone, the appeal has to be dismissed without going into any other factual aspects especially when there is no substantial question of law involved in this appeal.

In the result, the appeal stands dismissed with no order as to costs.

Consequently, the Civil Application No. 1467 of 2005 also stands dismissed with no order as to costs. " .....

Apparently, since the Second Appeal was dismissed without issuing notice to the Respondents, the other parties may not be aware about the filing of the said Second Appeal and its dismissal.

5. In due course Regular Civil Appeal No. 510 of 1994 filed by the Respondent Nos. 3a to 3 c being the Original Defendant Nos. 7-1 to 7-3 was placed for hearing before the District Court at Satara. The original Plaintiffs Yashoda and Godabai were impleaded as Respondent Nos. 7 and 8 in this R.C. Appeal No. 510 of 1994. Even in this Appeal, the heirs of the Tanaji who was impleaded as Respondent No.3 and who had died on 15/6/1998 during the pendency of this Appeal had not been brought on record and consequently, even this Appeal has abated as against Tanaji. Record of the present Second Appeal containing Judgment in the R.C. Appeal No. 510 of 1994 shows that the original Plaintiffs Yashoda and Godabai who were impleaded as Respondent Nos. 7 and 8 were represented by Advocate Mr. D.S. Patil, who was heard.

6. It is necessary to note that during the pendency of the R.C. Appeal No. 470 of 1994, the Advocate for the Appellants therein, 6 sa154.10

(original Plaintiffs) had filed a purshis indicating that that Appeal was required to be heard with Civil Appeal No. 510 of 1994. However, as stated above, the two Appeals were not clubbed together.

7. When Regular Civil Appeal No. 510 of 1994 filed by Respondent Nos. 3 A to 3 C herein was pending, the Respondents therein filed an Application below Exh. 26 on 5/11/2009 for production of certain documents and the learned District Judge-1 passed the following Order :

"Allowed COA."

8. The documents were accordingly filed with list Exh. 27 and the said list shows that the certified copy of the Judgment and Order dated 24/9/2004 passed in R.C. Appeal No. 470 of 1994 was filed on record and a photo copy of the Decree in Civil Appeal No. 470 of 1994 was also filed on record. The learned District Judge-1 made an endorsement on the said list Exh. 27 and so the documents were allowed to be filed on record.

9. Thereafter, by impugned Judgment and Order dated 27th November, 2009, the learned District Judge-1 Satara allowed R.C. Appeal No. 510 of 1994, and the following order was passed :

"ORDER

The Appeal is hereby allowed with costs.

The Judgment and Decree passed by the 2nd Jt. Civil Judge, Jr. Dn. Satara dt. 6.9.94 in Reg. Civil Suit No. 34/98 is hereby set aside.

On depositing the amount of Rs.1200/- by Plaintiff and Defendant No. 7 and 8 and the Defendant Nos. 1 to 6 are hereby directed to reconvey the suit land in favour of the Plaintiff and Defendant No. 7 and 8 in default, the Plaintiff and Defendant No. 7 and 8 are at liberty to execute the reconveyance through Court.

Decree be drawn up accordingly."

This is the Order against which the present Second Appeal is filed by the Original Defendant Nos. 1, 2, 4 to 6 and the widow and 2 7 sa154.10

sons of original Defendant No. 3 Tanaji.

10. It is in this context that the Civil Application No. 430 of 2010 has been filed by the Appellant seeking following reliefs :

(a) This Hon'ble Court be pleased to allow the applicants to bring on record as applicant Nos. 3A to 3C as heirs and legal representatives of deceased Applicant No. 3 namely Tanaji @ Appa Anant Ghorpade and accordingly allow to amend the cause title of Second Appeal and Civil Applications;

(b) This Hon'ble Court be pleased to condone the delay in bringing the heirs and legal representatives of deceased Applicant No. 3 namely Tanaji @ Appa Anant Ghorpade; (c) This Hon'ble Court be pleased to set aside the abatement in respect of deceased applicant No. 3 namely Tanaji @ Appa Anant Ghorpade;

(d) This Hon'ble Court be pleased to condone the delay in setting aside the abatement in respect of the deceased applicant No. 3 namely Tanaji @ Appa Anant Ghorpade; (e) This Hon'ble Court be pleased to grant the leave in favour of the applicants to allow them to file the present Second Appeal thereby challenging the judgment and decree dated 27.11.2009 passed by the District Judge-1, Satara in Regular Civil Appeal No. 510 of 1994;

(f) To pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

11. Since the Appellant Nos. 3A to 3C were not parties to the Appeal in the District Court, they have sought leave of the Court to file the Second Appeal.

12. It is apparent from the impugned Judgment and Order dated 27th November, 2009 that though by filing Applications Exh. 26 and list Exh. 27, the certified copy of the Judgment and Order dated 24/9/2004 in R.C.A. No. 470 of 1994 was placed on record of Civil Appeal No. 510 of 1994, there is absolutely no consideration of this aspect by the learned Judge who has passed the impugned Judgment and Order. Apparently, the fact that the Original 8 sa154.10

Plaintiffs had filed Second Appeal No. 927 of 2005 in this Court and the fact that the same has been dismissed on 6/9/2005 was also not brought to the notice of the learned District Judge. In view of these peculiar facts, I have deemed it fit to take up the Second Appeal for final hearing. Hence Appeal is admitted. Mr. Ghorpade waives service of notice for Respondent No.1 and 2 who are original Plaintiffs. Mr. Warunjikar waives service of notice on behalf of the Respondent Nos. 3a to 3c. The following questions of law are framed :

(1) Whether on account of dismissal of R.C. Appeal No. 470 of 1994 which was filed by the original Plaintiffs in R.C. Suit No. 34 of 1988; by Judgment and Order dated 24/9/2004, the Decree of the Trial Court has merged in the Decree passed in Civil Appeal No. 470 of 1994 and, hence, Civil Appeal No. 510 of 1994 filed by the original Defendant No. 7-1 to 7-3/Respondent Nos. 3a to 3c herein was maintainable ?

(2) Whether on account of the fact that original Defendant No.3 Tanaji Ghorpade had died on 15/6/1998, during the pendency of R.C. Appeal No. 470 of 1994 and R.C. Appeal No. 510 of 1994 and considering the nature of reliefs claimed in the Suit, on account of automatic abatement of the said Appeals against the deceased Tanaji on the expiry of a period of 90 days from 15/6/1998, both the Appeals had abated in their entirety ?

(3) Whether on account of the fact that the Second Appeal No. 927 of 2005 was filed by the Original Plaintiffs who were Appellants in R.C. Appeal No. 470 of 1994 and was summarily dismissed by the learned Single Judge (P.V.Kakade,J) on 6/9/2005, the Decree of the Trial Court dismissing the Suit has merged in the said Judgment ? (4) Whether the heirs of Original Defendant No. 7 had any locus standi to file an independent appeal in the absence of any counterclaim being filed or third party procedure being adopted for seeking a decree for Specific Performance ?

13. Considering the entire controversy, the Appeal is fixed after 2 weeks. Filing of private Paper Book and Decree Forms is dispensed with. Printing is dispensed with. Appeal to be shown 9 sa154.10

as part hard on the daily board."

2. Accordingly, Mr. Bodake, Advocate for the Appellants and Mr.

Warunjikar, Advocate for Respondent Nos. 3A to 3C and Mr. Ghorpade,

Advocate for Respondent Nos. 1 and 2 advanced their respective

arguments. I had occasion to consider a more or less identical situation

in Second Appeal No. 488 of 2010. In that Judgment I have taken

following view :

6. In Budh Ram & ors. v/s Bansi & & Ors AIR 2010 SCW 1

5071 , the Supreme Court has held thus :

12. Abatement takes place automatically by application of law without any order of the court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order XXII Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a Civil Suit. Order XXII Rule 2 relates to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order XXII Rule 3 CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order XXII Rule 4 CPC, however, deals with procedure in case of death of one of the several defendants or of the sole defendants. Sub-clause (3) of Rule 4 makes it crystal clear that where within the time limited by law, no application is made under sub-Rule 1, the suit shall abate as against the deceased defendant.

13. Provisions of Order XXII Rule 4 (4) CPC, provide that in case, the deceased defendant did not contest the suit and 1 AIR 2010 SCW 5071

10 sa154.10

did not file a counter affidavit, the substitution may not be warranted. In the instant case, the High Court repelled the submission regarding application of Order XXII Rule 4(4) CPC on the ground that the said provision requires the presentation of an application before the Court, before it pronounces its judgment for seeking such a relief and once such an application is allowed, in that case, it can only be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. This view stands fortified by the Judgments of this Court in Zahirul Islam Vs. Mohd. Usman & Ors. (2003) 1 SCC 4762; and T. Gnanavel Vs. T.S. Kanagaraj & Anr. AIR 2009 SC 23673. Thus, it has rightly been held by the High Court that the provisions of Order XXII Rule 4(4) CPC were not attracted in the facts of this case.

16. In Ramagya Prasad Gupta & Ors. Vs. Brahmadeo Prasad Gupta & Anr. AIR 1972 SC 11814, this Court examined the same issue in a case of dissolution of a partnership firm and accounts and placed reliance upon two judgments referred to immediately hereinabove and held as under:

"16. ........The courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three testes are not cumulative tests. Even if one of them is satisfied, the court

2 (2003) 1 SCC 476

3 AIR 2009 SC 2367

4 AIR 1972 SC 1181

11 sa154.10

may dismiss the appeal". (Emphasis added)

17. In Sardar Amarjit Singh Kalra & Ors. Vs. Pramod Gupta & Ors. AIR 2003 SC 25885, a Constitution Bench of this Court, while dealing with the similar issue, has after considering large number of judgments of this Court, reached the following conclusion :-

"(a) In case of "Joint and indivisible decree", "Joint and inseparable or inseparable decree", the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject matter vis-a-vis the others;

(b) the question as to whether the Court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially;

(c) existence of a joint right as distinguished from tenancy in common alone is not the criteria but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged;

(d) where the dispute between two groups of parties centerd around claims or based on grounds common relating to the respective groups litigating as distinct groups or bodies - the issue involved for consideration in such class of cases would be one and indivisible; and

(e) when the issues involved in more than one appeals dealt 5 AIR 2003 SC 2588

12 sa154.10

with as group or batch of appeals, which are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals." (Emphasis added)

The Court further observed that any relief granted and the decree ultimately passed, would become totally unenforceable and mutually self-destructive and unworkable vis-a-vis the other part, which had become final. The appeal has to be declared abated in toto. It is the duty of the court to preserve and protect the rights of the parties.

18. In Shahazada Bi & Ors. Vs. Halimabi AIR 2004 SC 39426, this Court considered the same issue and held as under :-

"..................That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties." (Emphasis added)

6 AIR 2004 SC 3942

13 sa154.10

7. This Judgment has followed the test laid down in the case of Ramagya Prasad Gupta v/s. Murli Prasad in AIR 1972 SC 11817, where 3 tests were laid down. The Constitution Bench Judgment of the Supreme Court in Sardar Amarjit Singh Kalra (supra) also lays down the said test.

8. Similar principles have been laid down in the following Judgments of the Learned Single Judges & Division Bench of this Court :

(1) Govind Laxman Jadhav v/s. Namdeo Balu Jadhav 2005(1) Bom. C.R. 278 (A.S. Oka, J)8.

(2) Govind Vishwanath Bansode & Anr. v/s. Manika Gangaram Bansode & ors. 2008(5) All M.R. 555 (V.R. Kingaonkar, J)9.

(3) Smt. Annabai Devram Kini & ors. v/s. Mithilal Daisangar Singh & ors. 2002(3) All M.R. 364 (Division Bench of A.P. Shah and V.K. Tahilramani, JJ)10

9. In the case of Dwarika Prasad v/s. Nirmala & ors. 2010 (3) Mh. L.J.41711, the Supreme Court has observed thus :

"7. This Court has heard the learned counsel for the parties at length and considered the record of the case. The argument that the respondent No. 1 was not entitled to file application for restoration of the suit filed by her late father, as right to sue did not survive in favour of the respondent No. 1 has no merit. It is well settled that where the right to sue is personal to the deceased, the same does not survive for the benefit of his legal representatives. There is no manner of doubt that late father of the respondent No. 1 had filed suit for partition of the joint properties. On his death right to sue survived and the respondent No. 1 being his daughter and legal representative was entitled to continue the suit in view of the provisions of Hindu Succession Act. 7 AIR 1972 SC 1181

8 2005(1) Bom. C.R. 278

9 2008(5) All M.R. 555

10 2002(3) All M.R. 364

11 2010 (3) Mh. L.J.417

14 sa154.10

The deceased who was a male Hindu, claimed interest in the joint properties which are subject matter of suit for partition. The record does not indicate that he had executed a Will though the appellant claimed that he had executed a Will in favour of Vijai Kumar. It may be mentioned that the said Vijai Kumar has not applied for being impleaded as a party to the proceedings nor claimed interest in the properties of the deceased. He, having died intestate, his share in the joint properties shall devolve by intestate succession as provided by Section 6 of the Hindu Succession Act, 1956. Section 8 of the said Act which deals with general rules of succession in the case of males, inter alia, provides that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being relatives specified in Class I of the Schedule to the Act. A daughter is specified as one of the relatives in Class I of the Schedule. Therefore, there is no manner of doubt that the share of the deceased plaintiff in the suit properties would devolve upon her, if suit for partition is decreed. Rule 3 of Order XXII CPC, inter alia, stipulates that when a sole plaintiff dies and the right to sue survives, the Court on an application made in that behalf, should cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Thus, the respondent No.1 was entitled to be substituted in place of her deceased father. The record shows that she came to know later on that fraud had been committed while getting Civil Suit No. 3A of 1996 dismissed as withdrawn. Hence, she was entitled to file application for restoration of the suit. Thus, it is not correct to argue that the respondent No. 1 was not entitled to file application for restoration of the suit filed by her father for partition of the joint properties."

10. The Supreme Court of India in the case of Jaladi Suguna v/s. Satya Sai Central Trust & ors. 2008 (7 ) SCR 73412 has held thus : "14. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can 12 2008 (7 ) SCR 734

15 sa154.10

proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent - plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (tenant) was only a proforma respondent. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal."

The Supreme Court has clearly held that if the entire Appeal abates, then Judgment delivered in such an Appeal is a nullity. This principle of law is also restated in the Judgment of Ambalal v/s. Gopal & ors AIR 2001 SCW 199613."

3. In the present case the facts are not in dispute. The suit in the

present case was filed by the widow and daughter of Late Jagannath

Ghorpade against 7 Defendants for re-conveyance of their half share

pursuant to the Agreement dated 8/5/1956. The Defendant No. 7 Eknath

was the younger brother of Late Jagannath Ghorpade, predecessor in title

of the original Plaintiffs. No relief was claimed against the Defendant No.

7 and relief was claimed against the Defendant Nos. 1 to 6 jointly.

Defendant No. 7 however, filed a Written Statement and in the said

Written Statement he admitted the claim and though formal counter claim

was not filed, it was contended by him that he was also ready to repay the

13 AIR 2001 SCW 1996

16 sa154.10

half amount of mortgage deed and get the property reconvened in his

favour to the extent of ½ share. In my opinion, mortgage suit is one of the

suits where the decree is always joint and indivisible. In the present case,

6 heirs of the original mortgagee/purchaser were joined as Defendant Nos.

1 to 6 and the relief was claimed against them jointly. One of them

namely Defendant No. 3 Tanaji Ghorpade died during the pendency of the

Appeals and his heirs were admittedly not brought on record. Despite the

fact of the death of Tanaji right to sue survived and it was for the

Appellants to bring the heirs of Tanaji on record. It is possible that the

factum of death of deceased Tanaji may not have been reported to the

respective Appellants. However, merely on that count, the legal effect of

the abatement of the Appeals as against Tanaji does not cease to take

effect. Considering the nature of the controversy, it is necessary to decide

whether the Appeals could have proceeded against remaining Defendants

being Defendant Nos. 1, 2 and 4 to 6.

4. The answer is clear from the Judgments of the Supreme Court. In

State of Punjab v/s. Nathu Ram AIR 1962 SC 8914 the Supreme Court

has observed in paragraph 4 to 8 thus :

14 AIR 1962 SC 89

17 sa154.10

"4. It is not disputed that in view of 0. XXII, r. 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when 0. XXII, r. 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent, there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.

5. The same conclusion is to be drawn from the provisions of 0. 1, r. 9, of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joiner of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.

6. The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in 18 sa154.10

deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (s) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.

7. There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances,have a repercussion, on the decision of the controversy between the appellant and the other decree- holders or on the execution of the ultimate decree between them.

8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be 19 sa154.10

final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree- holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant, and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondents, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken."

5. In Kunhayammed & ors. v/s. State of Kerala & Anr. 2000(6) SCC

35915, the Supreme Court has held thus in paragraph 44 :

"44. To sum up our conclusions are :-

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."

6. In Ambabai v/s. Gopal 2001(5) SCC 57016, the Supreme Court had

an occasion to deal with a similar situation where the Court was dealing

with a suit for partition and in that context it is observed thus in

15 2000(6) SCC 359

16 2001(5) SCC 570

20 sa154.10

paragraphs- 6 to 9 and 14 :

"6. 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.

7. 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?

8. 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. 21 sa154.10

Khirodhar Mahto and Others 1994 Supp. (3) SCC 31417 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. 17 1994 Supp. (3) SCC 314

22 sa154.10

9. In Rahmani Khatoon Vs. Harkoo Gope AIR 1981 SC 18

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."

14. 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."

7. In the backdrop of the aforesaid legal position and particularly in

view of the fact that the Supreme Court has repeatedly held that a 18 AIR 1981 SC 1450

23 sa154.10

Judgment delivered by a Court in an Appeal which abates in its entirety is

a nullity and such an Appeal cannot be decided on merits on account of