VIKRAM BHALCHANDRA GHONGADEversusTHE STATE OF MAHARASHTRA & ORS.

                [2025] 11 S.C.R. 264 : 2025 INSC 1283

                   Vikram Bhalchandra Ghongade
                                  v.
                   The State of Maharashtra & Ors.
                      (Civil Appeal No. 13409 of 2025)
                              06 November 2025
                 [Pamidighantam Sri Narasimha and
                      Atul S. Chandurkar,* JJ.]


                            Issue for Consideration
       Whether the executing Court erred in dismissing the execution
       petition as not maintainable; whether the decree passed by the first
       appellate Court having been passed in an appeal, where both the
       appellants had expired prior to the appeal being heard, its decree
       in favour of dead persons was a nullity; In the instant case, whether
       the decree passed by the trial Court is liable to be executed.

                                   Headnotes†
       Code of Civil Procedure, 1908 – Execution of decree – AT was
       allotted an agricultural land being an Ex-Army Serviceman –
       After his death, it was alleged that the said land was re-allotted
       by the Collector to the defendant nos.3 to 5 – The legal heirs
       of late AT filed for a declaration that the allotment of the said
       land in favour of defendant nos.3 to 5 was illegal – The trial
       Court decreed the suit – Aggreived, defendant nos.4 and 5
       preferred an appeal – Before the appeal could be heard, the
       defendant no.4 died on 27.10.2006, while the defendant no.5
       died on 20.09.2010 – This fact was not brought to the notice of
       the first Appellate Court – The first appeal was partly allowed
       on 20.10.2010 – The decree passed by the trial Court was
       modified – Second Appeal preferred – The original plaintiffs
       thereafter sought to withdraw the second appeal by urging that
       the first appeal preferred by defendant nos.4 and 5 itself had
       abated and the judgment of the trial Court was in operation –
       The second appeal was, accordingly, dismissed as withdrawn –
       Appellant herein (legal heir of the original plaintiffs) sought
       execution of decree – The Executing Court dismissed the
       execution petition as not maintainable – Correctness:

* Author
[2025] 11 S.C.R.                                                           265

  Vikram Bhalchandra Ghongade v. The State of Maharashtra & Ors.


     Held: 1. This Court is of the view that the Executing Court erred
     in dismissing the execution petition as not maintainable – The
     decree passed by the first Appellate Court having been passed
     in an appeal, where both the appellants had expired prior to the
     appeal being heard, its decree in favour of dead persons was a
     nullity – The decree passed by the trial Court, therefore, is liable
     to be executed. [Para 10]
     2. The judgment pronounced in the first appeal on 20.10.2010
     was in favour of the parties who were no more alive – The said
     adjudication, therefore, amounted to a nullity and the same did
     not have the force of law – The appellant is justified in seeking
     execution of the decree passed by the trial Court on the premise
     that the decree passed by the first Appellate Court was a nullity
     having been passed in favour of dead persons – In the case in
     hand, the judgment in favour of the deceased appellants would be
     a nullity in the absence of the legal heirs being brought on record
     and the judgment of the trial Court would be the one that would
     govern the rights of the parties – Hence, the decree passed by
     the trial Court would revive for being executed – The execution
     proceedings are restored for being decided in accordance with
     law by the Executing Court. [Paras 12, 13, 16]

                              Case Law Cited
     Bibi Rahmani Khatoon and Others v. Harkoo Gope and Others,
     1981 INSC 100 : [1981] 3 SCR 553 – relied on.
     P. Chandrasekharan and Others v. S. Kanakarajan and Others,
     2007 INSC 495 : [2007] 5 SCR 967; Rajendra Prasad and
     Another v. Khirodhar Mahto and Others (Civil Appeal No. 2275
     of 1994 decided on 11.01.1994); Amba Bai and Others v. Gopal
     and Others, 2001 INSC 263 : [2001] 3 SCR 551; Kiran Singh and
     Others v. Chaman Paswan and Others, 1954 INSC 45 : [1955] 1
     SCR 117 – referred to.

                                List of Acts
     Code of Civil Procedure, 1908; Limitation Act, 1963.

                             List of Keywords
     Decree; Execution of decree; Allotment of land; Execution
     proceedings; Decree in favour of dead; Heirs; Legal representatives;
     Abatement of proceedings; Legal heirs on record.
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                               Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13409 of 2025
       From the Judgment and Order dated 11.03.2024 of the High Court
       of Judicature at Bombay at Nagpur in WP No. 5791 of 2023

                           Appearances for Parties
       Petitioner-in-person.
       Advs. for the Respondents:
       Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha
       Pande, Sanjeev Kaushik, Simranjeet Singh Rekhi, Ms. Jyotika,
       Ms. Astha Sharma.

                  Judgment / Order of the Supreme Court

                                  Judgment

       Atul S. Chandurkar, J.

1.     Application seeking permission to appear and argue in-person is
       allowed.
2.     Leave granted.
3.     The appellant, who is the legal heir of the original plaintiffs, seeks to
       execute the decree passed by the trial Court in favour of the original
       plaintiffs. The executing Court has, however, refused to permit
       execution of the decree passed by the trial Court on the ground that
       the appeal preferred by the defendant Nos. 4 and 5 could not be
       stated to have abated notwithstanding the death of defendant Nos.
       4 and 5 prior to hearing of the first appeal. The said appeal having
       been decided on merits and the decree passed by the trial Court
       having been modified, the decree passed by the trial Court could
       not have been executed.
4.     The facts lie in a narrow compass. It is the case of the appellant that
       his predecessor- Mr. Arjunrao Thakre was allotted agricultural land
       from Survey Nos.106 and 107/1 situated at Village Takarkheda, Taluka
       Arvi, District Wardha, Maharashtra being an Ex-Army Serviceman.
       After his death, it was alleged that the said land was re-allotted by the
       Collector, Wardha to the defendant Nos.3 to 5. The legal heirs of late
[2025] 11 S.C.R.                                                            267

     Vikram Bhalchandra Ghongade v. The State of Maharashtra & Ors.


       Mr. Arjunrao Thakre filed RCS No.181 of 2001 for a declaration that
       the allotment of the said land in favour of defendant Nos.3 to 5 was
       illegal. The trial Court vide its judgment dated 14.08.2006 decreed the
       suit by holding the allotment of the suit land in favour of defendant
       Nos.3 to 5 to be illegal. It also declared that the predecessor of the
       plaintiffs had been allotted the said land and thus, his legal heirs
       were the owners of the same. Accordingly, a decree for possession
       of the said land was passed in their favour.
5.     The defendant Nos.4 and 5 being aggrieved by the aforesaid decree
       preferred an appeal under Section 96 of the Code of Civil Procedure,
       1908 (for short, “the Code”). Before the appeal could be heard, the
       defendant No.4 died on 27.10.2006, while the defendant No.5 died on
       20.09.2010. This fact was not brought to the notice of the first appellate
       Court, which heard the counsel for the parties on 28.09.2010. The
       first appeal was partly allowed on 20.10.2010. The decree passed
       by the trial Court was modified and the plaintiffs were held entitled
       only to a portion of the lands that had been allotted to Mr. Arjunrao
       Thakre. The original plaintiffs being aggrieved by the aforesaid decree
       of the first appellate Court preferred a second appeal under Section
       100 of the Code. The said appeal came to be disposed of by the
       Registrar (Judicial) as abated against defendant Nos. 4 and 5 on the
       ground that they had expired during pendency of the first appeal and
       their legal heirs had not been brought on record within the limitation
       period. The original plaintiffs sought restoration of the second appeal
       by urging that the first appeal preferred by defendant Nos.4 and 5
       itself had abated as the said defendants had died during pendency of
       the first appeal and their legal heirs had not been brought on record.
       It was, thus, urged that the judgment of the first appellate Court was
       a nullity as the appeal filed by the said defendants had abated. The
       High Court vide its order dated 03.12.2012 noted these facts and
       by observing that the said factual position was not in dispute, held
       that the second appeal could not have been dismissed as abated.
       The second appeal was accordingly restored. The original plaintiffs
       thereafter sought to withdraw the second appeal by urging that the
       first appeal preferred by defendant Nos.4 and 5 itself had abated
       and the judgment of the trial Court was in operation. The second
       appeal was, accordingly, dismissed as withdrawn.
6.     The appellant thereafter sought to execute the decree passed by the
       trial Court on 14.08.2006. He, accordingly, filed Regular Darkhast
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       No.22 of 2022 before the executing Court. The executing Court issued
       notices to the judgment debtors and thereafter heard the parties. The
       appellant urged that since the first appeal preferred by defendant
       Nos.4 and 5 had abated, the decree passed by the trial Court was
       liable to be executed. The executing Court however found that the
       defendant No.5 had expired on 20.09.2010 and the first appeal had
       been decided on 20.10.2010. After the death of defendant No.5 on
       20.09.2010, there was a period of ninety days for bringing his legal
       heirs on record. As the first appeal was decided prior to the expiry of
       the period of ninety days, it could not be said that the first appeal had
       abated by virtue of the death of defendant No.5. It further observed
       that if the first appeal would have been decided after 19.12.2010, then
       it could be said that it had abated. The executing Court, therefore,
       held that the decree passed by the trial Court having merged with
       the decree passed by the first appellate Court, the appellant was
       not justified in seeking execution of the decree passed by the trial
       Court. The execution application preferred by the appellant came
       to be dismissed with costs.
7.     The appellant being aggrieved by the aforesaid order approached
       the High Court by filing Writ Petition No. 5791 of 2023. The learned
       Judge of the High Court on 11.03.2024 upheld the order passed
       by the executing Court and dismissed the said writ petition. Being
       aggrieved, the appellant has come up in appeal.
8.     The appellant-in-person submits that the defendant No.4 having
       expired on 27.10.2006 and the defendant No.5 having expired on
       20.09.2010, their legal heirs were never brought on record. The
       first appellate Court heard the learned counsel for the parties on
       28.09.2010, which was after the death of both the defendants. The
       said appeal was partly allowed on 20.10.2010. Thus, when the
       appeal was decided, both the appellants, namely defendant Nos.
       4 and 5 had expired and their legal heirs had not been brought
       on record. As a result, the adjudication by the first appellate Court
       was a nullity and the decree passed by it on 20.10.2010 could
       not have been executed. The decree passed by the trial Court
       was the only decree holding the field. Its execution was rightly
       sought by the appellant. The executing Court erred in holding
       that the judgment of the first appellate Court was legal and valid
       despite the death of both the appellants. The appellant-in-person
       invited attention to the provisions of Order XXII Rule 2 (2) and
[2025] 11 S.C.R.                                                     269

     Vikram Bhalchandra Ghongade v. The State of Maharashtra & Ors.


       Rule 6 of the Code to urge that the order passed by the executing
       Court was contrary to law. The learned Judge of the High Court
       committed a similar error while dismissing the writ petition. He
       placed reliance on the decision in P. Chandrasekharan and others
       vs. S. Kanakarajan and others1, and prayed that the execution
       proceedings be restored to enable the appellant to execute the
       decree passed by the trial Court.
9.     The legal heirs of the defendant Nos.4 and 5 though served have
       not chosen to contest the present proceedings. Mr. Sanjeev Kaushik,
       learned counsel appearing for the respondent No.3 supported the
       impugned order and submitted that the executing Court rightly
       declined to execute the decree passed by the trial Court. The said
       decree having been modified by the first appellate Court, that was
       the only decree that was liable to be executed. Mr. Shrirang B.
       Verma, learned counsel appearing for the respondent Nos. 1 and 2
       also supported the order passed by the executing Court as upheld
       by the High Court.
10. Having heard the appellant-in-person as well as the learned counsel
    for the respondents, we are of the view that the executing Court
    erred in dismissing the execution petition as not maintainable. The
    decree passed by the first appellate Court having been passed in
    an appeal, where both the appellants had expired prior to the appeal
    being heard, its decree in favour of dead persons was a nullity. The
    decree passed by the trial Court, therefore, is liable to be executed.
11. It is not in dispute that the suit filed by the predecessors of the
    appellant was decreed on 14.08.2006. The trial Court declared the
    original plaintiffs as owners of the suit land that had been allotted
    to Mr. Arjun Thakre. The plaintiffs were held entitled to receive
    possession of the said lands. The subsequent allotment of the
    same land in favour of defendant Nos.3 to 5 was held to be illegal.
    The defendant No.3 did not choose to challenge this decree. It is
    only the defendant Nos.4 and 5, who preferred an appeal under
    Section 96 of the Code. During pendency of that appeal, the
    defendant No.4 expired on 27.10.2006, while the defendant No.5
    expired on 20.09.2010. The record indicates that the appeal was
    heard on 28.09.2010. As per the provisions of Order XXII Rule 6


1     2007 INSC 495
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       of the Code, if a party expires between the conclusion of hearing
       and pronouncement of the judgment, the same does not result
       in abatement of such proceedings and the judgment on being
       pronounced, would have the same force and effect as if it had been
       pronounced before the death of such party took place. In view of
       the fact that the defendant Nos.4 and 5 had died prior to the appeal
       being heard on 28.09.2010, it is evident that the proceedings in the
       said appeal are not saved by the provisions of Order XXII Rule 6
       of the Code. In effect, the appeal was decided notwithstanding the
       death of both the appellants, who had preferred the appeal.
12. According to the executing Court, since the appeal was decided on
    20.10.2010, which was prior to expiry of a period of ninety days from
    the death of defendant No.5 on 20.09.2010, the appeal could not
    have been disposed of as abated. It is correct that the abatement
    of a proceeding cannot take place prior to expiry of the prescribed
    period of limitation of ninety days under Article 120 of the Limitation
    Act, 1963 for bringing on record the legal heirs. Notwithstanding
    this position, the fact remains that prior to the appeal being heard
    and thereafter decided, both the appellants who had filed the said
    appeal were no more. The judgment pronounced in the first appeal
    on 20.10.2010 was, thus, in favour of the parties who were no
    more alive. The said adjudication, therefore, amounted to a nullity
    and the same did not have the force of law. This position is not in
    doubt and we may only refer to the decisions in Rajendra Prasad
    and another vs. Khirodhar Mahto and others2 and Amba Bai
    and others vs. Gopal and Others3 in this regard. The appellant,
    therefore, is justified in contending that the decree passed by the
    first appellate Court was a nullity as it was passed in favour of the
    appealing parties, who had expired prior to the appeal being heard
    and decided. As a result, the only decree that could be enforced
    was the one passed by the trial Court on 14.08.2006.
13. In our view, therefore, the appellant is justified in seeking execution
    of the decree passed by the trial Court on the premise that the
    decree passed by the first appellate Court was a nullity having been
    passed in favour of dead persons. We are fortified in this view by the


2   Civil Appeal No. 2275 of 1994 decided on 11.01.1994
3   2001 INSC 263
[2025] 11 S.C.R.                                                           271

    Vikram Bhalchandra Ghongade v. The State of Maharashtra & Ors.


      decision in Bibi Rahmani Khatoon and others vs. Harkoo Gope
      and others,4 wherein it was held as under:
             “If a party to a proceeding either in the trial Court of 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.”
      These observations though made in the context of abatement of
      proceedings, the same position would arise when the appellant/s
      expires prior to hearing of the appeal, which is subsequently allowed
      without the legal heirs being brought on record. In the case in hand,
      the judgment in favour of the deceased appellants would be a nullity
      in the absence of the legal heirs being brought on record and the
      judgment of the trial Court would be the one that would govern the
      rights of the parties. Hence, the decree passed by the trial Court
      would revive for being executed.
14. The execution proceedings herein could not have been dismissed on
    the ground that the decree passed by the trial Court was superseded
    by the decree passed by the first appellate Court and was modified.
    Since the decree of the first appellate Court was a nullity, the plaintiffs
    were entitled to execute the decree passed by the trial Court. It is
    well settled that if a decree is a nullity, its invalidity can be set up
    whenever and wherever it is sought to be enforced, even at the
    stage of execution as held in Kiran Singh and others vs. Chaman
    Paswan and others5.
15. We may note that the legal heirs of defendant Nos.4 and 5 who
    had preferred the first appeal did not take any steps whatsoever to



4    1981 INSC 100
5    1954 INSC 45
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                              Supreme Court Reports


       have themselves impleaded before the first appellate Court. Even
       after the appellant filed the execution proceedings, no steps have
       been taken by the legal heirs of defendant Nos.4 and 5 to have
       themselves impleaded. Even before this Court, they have not chosen
       to contest the proceedings. The contest by respondent No.3, who
       was the defendant No.3 before the trial Court, would be of no avail
       as the defendant No.3 did not challenge the decree passed by the
       trial Court.
16. For all these reasons, we are of the view that the executing Court
    committed an error in dismissing the execution proceedings that
    sought to execute the decree passed by the trial Court. The learned
    Single Judge was also not justified in upholding the order passed
    by the executing Court. The appellant would be entitled to seek
    execution of the decree passed in Regular Civil Suit No.181 of 2001.
       Accordingly, the order dated 21.06.2023 passed by the executing
       Court in Regular Darkhast No.22 of 2022 as well as the order passed
       by the High Court in Writ Petition No.5791 of 2023 on 11.03.2024 are
       set aside. The execution proceedings are restored for being decided
       in accordance with law by the executing Court. The civil appeal is
       allowed in aforesaid terms leaving the parties to bear their own costs.

       Result of the case: Appeal allowed.




       †
           Headnotes prepared by: Ankit Gyan