Holding

The second appeal abated due to the appellant's death and failure of his heirs to be impleaded, so no merger occurred and the first appellate decree became final, allowing execution.

Summary

The plaintiff filed a suit for specific performance which was dismissed by the trial court, but the first appellate court decreed in his favour. The defendant appealed this decree, and while the second appeal was pending both parties died; the plaintiff's legal representatives were brought on record, but the defendant's were not. The High Court single judge dismissed the second appeal without noting the defendant's death and held that the decree from the second appeal merged with the first appellate decree, rendering the execution proceedings void. The Supreme Court held that the death of the appellant without his heirs being impleaded caused the second appeal to abate under Order 22 of the CPC, and therefore no merger could occur. Consequently, the decree of the first appellate court became final and execution of that decree was permissible. The Court set aside the High Court order and allowed the appeal.

Issues considered

The effect of the death of an appellant during the pendency of an appeal under Order 22 of the CPC.
Whether a decree passed in a second appeal that abated merges with the decree of the first appellate court under the doctrine of merger.
Whether execution of a decree is permissible when the second appeal is a nullity.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 11, s. Order 22 Rule 3, s. Order 22 Rule 9

Subjects

specific performanceabatementdeath of partyappealdoctrine of mergerexecution of decreeCivil Procedure CodeOrder 22legal representativesnullity

Judgment

AMBA BAI AND ORS. A
v.
~
GOPAL AND ORS.

~
MAY 8, 2001

[UMESH C. BANERJEE AND K.G. BALAKRISHNAN, JJ.] B·

Civil Procedure Code, 1908-0rder 22, Rules, 3, p and ll-Appeal-
.) Abatement-Effect of-Suit for specific performance-Decreed by First
Appellate Court--Second Appeal-Pendency of-Death of second Appellant
(Defendant)-Not brought to the notice of court-Legal representatives not c

-
impleaded as parties-Dismissal ofSecond Appeal-:-E!fect of-Held, Second
Appeal should be deemed to have abated-Decree passed by First Appellate ·
Court would acquire finali~No merger ofjudgment, decree or order passed
' I

in Second Appeal with that passed in First Appeal.

Doctrines D

Doctrine of Merger-Scope and Applicability of
A.
Plaintiff filed a suit for specific performance against the defendant
which.was dismissed by Trial Court Howeyer, on appeal, the Appellate Court
decreed the suit. Thereafter, defendant preferred a Second Appeal before the E

... .High Court. During the ven(lency of Second Appeal plaintiff died and his
legal representatives were brought on reco,rd. Second appellant (Defel!dant)
also died during th~ pendency of said appeal but that fact was not brought
to the notice of the court and the appeal was.dismissed. Appellant, legal
~
"". ' representatives of deceased plaintiff initiated execution proceedings against F
respondent, legal representatives of defendant. Respondents resisted the
execution application contending thafthe decree under execution passed by
the High Court against a dead person was a nullity and hence, it would not
be executed. Subordinate ,Judge rejected the said ~ontention. However, on
revision, High Court held that the decree passed in the Second Appeal had
merged with the decree passed in tbe First Appeal and thus, the execution G

-- ,J,..,.,
proceedings were liable to be dismissed. Hence the present appeal.

On behalf of the appellants it was contended that when no steps were
taken by the legal representatives of defeJ!dant to come on record as appellant51
the Second Appeal should be treated to have abated and thus, Single Judge
551 H
\
552 SUPREME COURT REPORTS [2001] 3 S.C.R.

A of High Court was not .iustified in holding that there was a merger of the
decree passed in the Second Appeal with that of the decree passed in the -r
· First Appeal.
,,_
On behalf of respondents it was contended that the Second Appeal was
dismissed by the Single Judge of High Court at a ti~e when the appellant
B was already dead and such ajudgnient being a nullity in the eye of law and
Second Appeal being a continuation of the proceedings of the suit, there was
no decree as such which was capable of being executed.

Allowing the appeal, the Court

c , HELD : 1.1. Single Judge. of the High Court was not justified in

--
dismissing the execution proceedings holding that there was a merger of the
deeree passed by the ffigh Court in the Second Appeal with that of the decree
passed in the First Appeal. [554-C}'.
'
1.2. Judgment or order of a11 inferior court, subjected to an appeal or
D revision before the superior court and the order or judgment passed by the
superior court in such proceedings determining the rights of the parties,
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
prim.~iple that t.here cannot be, at one and the same time, more than one

E operative order govemiitg 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. [557-G] ....
.
1.3. In the instant case, there is no question of application of the doctrine
~ .. _

F
of merger. As .the second appell!l"t died during the pendency of the appeal,
the judgment passed wit~out the knowledge that appellant had died, being a
..
t
j~dgment passed against the dead._person, is a nullity. When the second
appellant died his legal representatives would have taken steps to get
themselves impleaded .in the Second Appeal Proceedings and as it was not
done, the Second Appe~ should be taken to hav~ abated by operation of law. ·
Thus, when the Second Appeal had. abated .and the l~al ,representatives of
G ;..
appellant were not brought on record, t~e decree ~Yhich was passed by the
First Appellate Court, would acquire finality. Failure on the part of legal
heirs of defendant to get themselves impleaded in the Second Appeal and ,.....
pursue the matter further shall not adversely affect the plaintiff-decree holding
as it would be against the mandate of Rule 9 of Order 22, Code of Civil
H Procedure. [558-E-F]
AMBA BAI v. GOPAL [BALAKRISHNAN, J.] 553
-,,
____..,
/
Rajendra Prasad and Am: v. Khirodhar Mah to and Ors., [1994) Supp. A
--.:: 3 SCC 314; Rahmani Khatoon v. Harkoo Gope, AIR {1981) SC 1450; State
ofMadras v. Madurai Mills Co. Ltd., AIR (1967) SC 681 and Kunhayammed
.' v. State of Kera/a, [2000) 6 SCC 359, relied on.

Law Lexicon by P. Ramanatha Aiyer, 2nd Edition, 1224, referred to.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4156 of
1998.

From the Judgment and Order dated 5.3.98 of the Rajasthan High Court
in S.B.C.R. No. 599of1996.
c
,. Tapas C. Ray, Sushil Kr. Jain and K.G. Arora for the Appellants.

Ashok Mathur for the Respondent.

. The Judgment of the Court was delivered by
D
BALAKRISHNAN, J. This appeal is directed against the Order passed
A._ 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 :ippeal and the Appellate Court allowed the same and
E
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 F
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
G
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 decJined
to accept this contention and held that the execution proceedings had been
initiated in accordance with the decree which was passed by the First H
554 SUPREME COURT REPORTS (2001) 3 S.C.R.

A Appellate Court and the High Court had not can:ied out any amendment iil T

"'

..
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. l=:

B 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· ihe 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
c 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
D 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
E
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 Apj)eaI. According to the appellants' Counsel, there was n,o 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
F 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. nuUity 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
G
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
H in case of death of one of several plaintiffs or of sole plaintiff. It states that
AMBA BAI v. GOPAL [BALAKRISHNAN, J.] 555
where one of two or more plainti~s die~ and the right to sue does not survive A
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 limite~ by law no application is made under sub-
rule ( 1), the suit shall abate so far as the deceased plaintiff is concerned, and, B
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 c
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:-

"(l) Where a suit abates or is dismissed under this Order, no fresh suit D
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 E
cause from continuing the suit, the Court shall set aside the abatement
or dismissal upon such ~erms 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 F
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,
G
if the suit is already not abated, and if abated, they have to file an application
to set aside abatement also.

-l._ In the instant case, deceased Radhu Lal, the second appellant died on
14.1~.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 H
556 SUPREME COURT REPORTS [2001] 3 S.C.R.

A 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 a!Jated
B 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
c 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 v.
Khirodhar Mahto and Others, [1994) Supp. 3 SCC 314 wherein it was held
that as a conseque~ce of the abatement of the appeal filed against final decree
D 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.
E
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 ofTapeshari ,-I.

F 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
G
share. The suit was dismissed. The oriilnal plaintiffs l & 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 .J-.

the plaintiffs 1 & 2 were entitled to the benefit of preliminary decree. Ultimately,
H this Court held that whether Tapeshari Keur was the daughter Of Ramyad
,.
I

AMBA BAI v. GOPAL [BALAKRISHNAN, J.] 557

Mahto or not was required to be gone into only when her legal representatives A
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 wRs 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, B'
the result was that the preliminary decree became final.

In Rahmani Khatoon v. 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
c~
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
proceeding:>. 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 D,
and either the appeal or revision abates, it will have ~o 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 E
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
doctrine 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]. F
If the Judgement or order of an inferior Court is subjected to an appeal
or revision by the superior court and in such proceedings 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 G
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 H
558 SUPREME COURT REPORTS [2001] 3 S.C.R.

A 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 v. Madurai Mills Co. Ltd., AIR (1967)
SC 681, observed as under:-

B "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
c 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 v. State of Kera/a, [2000] 6 SCC
D 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
E doctrine of merger. As the second appellant Radhulal di¢ 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
F impleaded in the Second Appeal and pursue the matter further shall not·
. adversely affect the plaintiff-decree hplder 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.
G
S.VK. Appeal allowed.