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CASE NO.: Appeal (civil) 4156  of  1998

PETITIONER: AMBA BAI AND OTHERS

       Vs.

RESPONDENT: GOPAL AND OTHERS

DATE OF JUDGMENT:       08/05/2001

BENCH: U.C. Banerjee & K.G. Balakrishnan

JUDGMENT:

Balakrishnan, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  appeal is directed against the Order passed by the learned  Single  Judge of the Rajasthan High Court in  Civil Revision Petition No.  599/1996.  One Laxmi Lal filed a suit for  specific  performance against one Radhu Lal.  The  suit was dismissed by the Trial Court.  Plaintiff Laxmi Lal filed an  appeal  and  the Appellate Court allowed  the  same  and decreed  the  suit.  Aggrieved by the same, defendant  Radhu Lal  preferred a Second Appeal in the High Court against the decree  granting specific performance.  During the  pendency of the Second Appeal, plaintiff Laxmi Lal died and his legal representatives were brought on record as respondents in the Second Appeal.  It is admitted by the parties that while the Second  Appeal was pending, Radhu Lal died on 14.12.1990 and this fact was not brought to the notice of the Court and the appeal  was dismissed on 23.5.1991.  The legal heirs of  the deceased  Radhu  Lal  did  not take any steps  to  have  the judgment  in  the  Second  Appeal   set  aside.   The  legal representatives  of  the  decree-holder   Laxmi  Lal   filed Execution  Case No.  3/93 against the legal  representatives of  the  deceased  Radhu Lal.  They resisted  the  execution application  and  contended that the decree under  execution was one passed by the High Court in the Second Appeal and as the appellant had died prior to the passing of the Judgment, the  decree and the judgment passed against the dead  person was  a  nullity  and hence, it could not be  executed.   The Subordinate  Judge  declined to accept this  contention  and held  that  the execution proceedings had been initiated  in accordance  with  the decree which was passed by  the  First Appellate  Court and the High Court had not carried out  any amendment  in  the  decree and, therefore, the  question  of merger  of the decree of the First Appellate Court with  the decree  passed  by the Second Appellate Court did not  arise and  the  Second Appeal preferred by the deceased Radhu  Lal had abated as no legal heirs were brought on record within a period of 90 days.

   This  order  of  the Subordinate  Judge  was  challenged before  the  High Court in Revision and the  learned  Single

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Judge  of the High Court held that the decree passed in  the Second  Appellate Court was a nullity as it had been  passed against  the dead person and this decree had merged with the decree  passed in the First Appellate Court.  Therefore,  it was  held  that the decree under execution was a nullity  in the eye of law, and the execution proceedings were liable to be  dismissed.  This finding of the learned Single Judge  is challenged before us.

   We  heard  the learned senior Counsel for the  appellant Mr.   Tapas C.  Ray and also the Counsel for the Respondent, Mr.   Ashok Mathur.  The Counsel for the appellant contended that  the learned Single Judge committed a serious error  of law  in holding that there was a merger of the decree passed by  the  High  Court in the Second Appeal with that  of  the decree  passed  in the First Appeal.  It was argued that  as the  second  appellant Radhu Lal died while the  appeal  was pending  and no steps were taken by his legal heirs to  come on record as appellants, the Second Appeal should be treated to  have abated and when the Second Appeal had abated, there was  no question of any merger of the First Appellate decree with  the  order,  if  any, passed  in  the  Second  Appeal. According to the appellants’ Counsel, there was no decree at all  in  the  Second Appeal and the judgment passed  in  the Second  Appeal is a nullity as it had been passed against  a dead  person.  The Counsel for the respondents, on the other hand,  contended that the Second Appeal was dismissed by the learned  Single  Judge  at  a time when  the  appellant  was already  dead and such a judgment being a nullity in the eye of  law,  it  was  argued that the  Second  Appeal  being  a continuation  of  the proceedings of the suit and  that  the final  order having been passed by the learned Single  Judge being  a  nullity in the eye of law, there is no  decree  as such  which  is capable of being executed.  The Counsel  for the respondents submitted that the execution proceedings are without  any  basis  and  thus, he  supported  the  impugned judgment.

   Order  22 Rule 3 of the Civil Procedure Code  prescribes the  procedure in case of death of one of several plaintiffs or  of  sole plaintiff.  It states that where one of two  or more  plaintiffs dies and the right to sue does not  survive to  the  surviving plaintiff or plaintiffs alone, or a  sole plaintiff or sole-surviving plaintiff dies, and the right to sue  survives,  the  Court, on an application made  in  that behalf, shall cause the legal representative of the deceased plaintiff  to  be  made a party and shall proceed  with  the suit.  Rule 3(2) of Order 22 says that where within the time limited  by  law no application is made under sub-rule  (1), the  suit  shall abate so far as the deceased  plaintiff  is concerned,  and,  on the application of the  defendant,  the Court  may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased  plaintiff.   Rule  11 of Order 22  says  that  the provisions  contained  in  Order 22 shall be  applicable  to appeals  and so far as the word "plaintiff" shall be held to include  an appellant, the word "defendant" shall be held to include respondent and the word "suit" an appeal.

   Rule  9 of Order 22 states about the effect of abatement or dismissal.  Rule 9 is to the following effect:-

   "(1)  Where  a  suit abates or is dismissed  under  this Order,  no fresh suit shall be brought on the same cause  of action.

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   (2) The plaintiff or the person claiming to be the legal representative  of  a deceased plaintiff or the assignee  or the receiver in the case of an insolvent plaintiff may apply for  an order to set aside the abatement or dismissal;   and if  it  is  proved that he was prevented by  any  sufficient cause  from  continuing the suit, the Court shall set  aside the  abatement  or dismissal upon such terms as to costs  or otherwise as it thinks fit."

   The  various  provisions  contained in  Order  22,  CPC, explain  the  consequences  of death of parties in  a  civil litigation.   If one of the plaintiffs dies and if the cause of  action  survives  his legal representatives have  got  a right to come on record and to continue the proceedings.  If the sole plaintiff dies and if the legal representatives are not  brought  on record, the suit will abate and Rule  9  of Order  22  CPC specifically prohibits the filing of a  fresh suit on the same cause of action.  The only remedy available to  the legal representatives is to get themselves impleaded and  continue  the proceedings, if the suit is  already  not abated,  and if abated, they have to file an application  to set aside abatement also.

   In  the  instant  case, deceased Radhu Lal,  the  second appellant  died on 14.12.1990 and his death was not  brought to  the  notice  of the Court and the learned  Single  Judge disposed  of  the appeal on merits by dismissing the  Second Appeal  on 25.3.1991.  As the Judgment in the Second  Appeal was  passed  without  the knowledge that the  appellant  had died,  the  same  being a judgment passed against  the  dead person  is  a nullity.  When the second appellant Radhu  Lal died  on  14.12.1990, his legal representatives  could  have taken steps to get themselves impleaded in the Second Appeal proceedings and as it was not done, the Second Appeal should be taken to have abated by operation of law.  Therefore, the question  that requires to be considered is that when  there was abatement of the Second Appeal, can there be a merger of the  same  with  the decree passed by  the  First  Appellate Court?

   Before  considering  the question of merger, we have  to consider  the  effect of abatement.  When the Second  Appeal had  abated  and the legal representatives of the  appellant were  not brought on record, the decree, which was passed by the  First  Appellate  Court,  would  acquire  finality.   A similar  matter came up before this Court in Rajendra Prasad and  another Vs.  Khirodhar Mahto and Others 1994 Supp.  (3) SCC  314  wherein it was held that as a consequence  of  the abatement  of  the  appeal filed against final decree  in  a partition  suit, the preliminary decree would become  final. In that case, the appellants and Tapeshari Kuer filed a suit for  partition of immovable properties, including plaint 4 & 5  properties.   The  property originally  belonged  to  one Bishni  Mahto.   He had two sons namely Sheobaran Mahto  and Ramyad  Mahto.   Tapeshari Kuer was the daughter  of  Ramyad Mahto.  Plaint 4 & 5 properties were not partitioned between these two sons of Bishni Mahto.  Ramyad Mahto, the father of Tapeshari Kuer died and she succeeded to the one half of the undivided  share of the two sons of Bishni Mahto.  Tapeshari Kuer  had  executed a gift deed in favour of the  appellants bequeathing her undivided interest inherited from her father in  respect of plaint item no.  4 property.  The Trial Court decreed  the suit declaring the half share of Tapeshari Keur in  plaint 5 of the property.  Appellants who had joined  as

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plaintiffs 1 & 2 were held to have half share in plaint item no.   4  by  virtue of the gift deed executed by  her.   The defendants  in the suit filed an appeal and pending  appeal, Tapeshari  Kuer  died.  Her legal heirs were not brought  on record.   The Appellate Court gave a finding that  Tapeshari Keur  was not the daughter of Ramyad Mahto and the appellant did  not  acquire any interest in the undivided share.   The suit was dismissed.  The original plaintiffs 1 & 2 filed the Second  Appeal before the High Court.  The Second Appeal was dismissed,  as the heirs of Tapeshari Keur were not  brought on record.  The original plaintiffs 1 & 2 carried the matter to  this Court by special leave.  It was contended that  the plaintiffs 1 & 2 were entitled to the benefit of preliminary decree.   Ultimately, this Court held that whether Tapeshari Keur was the daughter of Ramyad Mahto or not was required to be  gone  into  only  when her  legal  representatives  were brought  on  record.  It was held that the decree against  a dead person was a nullity and, therefore, the declaration by the  First  Appellate  Court that Tapeshari Keur was  not  a daughter  of  Ramyad Mahto was not valid in law.   The  High Court  had held that the decree of the Appellate Court was a nullity  and the respondent did not file any appeal  against that part of the decree, the result was that the preliminary decree became final.

   In  Rahmani  Khatoon Vs.  Harkoo Gope AIR 1981 SC  1450, this Court held at page 1453 at para 10 as under:-

   "The  concept of abatement is known to civil law.  If  a party  to  a  proceeding either in the trial  court  or  any appeal  or revision dies and the right to sue survives or  a claim   has   to   be  answered,   the   heirs   and   legal representatives  of  the  deceased party would  have  to  be substituted  and failure to do so would result in  abatement of  proceedings.   Now, if the party to a suit dies and  the abatement  takes place, the suit would abate.  If a party to an appeal or revision dies and either the appeal or revision abates,  it  will have no impact on the judgment  decree  or order against which the appeal or revision is preferred.  In fact,  such  judgment,  decree  or  order  under  appeal  or revision would become final."

   The  learned  Single  Judge  of the High  Court  in  the impugned  order  held  that the order passed  in  the  first appellate  decree merged into the order passed in the Second Appeal  and  hence  there  is no  executable  decree.   "The doctrince   of  merger  arise  only   when  there  are   two independent  things and the greater one would swallow up  or may  extinct the lesser one by the process of absorption.

   "  [  "Law Lexicon" by P.  Ramanatha Aiyar - page  1224, 2nd Edition ].

   If  the  Judgement  or  order of an  inferior  Court  is subjected to an appeal or revision by the superior court and in  such proceeedings the order or judgment is passed by the superior  court determining the rights of parties, it  would supersede  the  order  or judgment passed  by  the  inferior court.   The  juristic  justification for such  doctrine  of merger  is  based  on the common law  principle  that  there cannot be, at one and the same time, more than one operative order  governing the subject matter and the judgment of  the inferior  court  is deemed to lose its identity  and  merges with  the judgment of the superior court.  In the course  of time,  this  concept  which  was  originally  restricted  to

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appellate   decrees  on  the  ground   that  an  appeal   is continuation  of the suit, came to be gradually extended  to other  proceedings  like Revisions and even the  proceedings before quasi- judicial and executive authorities.

   This  Court  in State of Madras Vs.  Madurai  Mills  co. Ltd.  AIR 1967 SC 681, observed as under:-

   "The  doctrine of merger is not a doctrine of rigid  and universal  application  and it cannot be said that  wherever there  are two orders, one by the inferior authority and the other  by  a  superior  authority, passed in  an  appeal  or revision,  there  is  a  fusion  or  merger  of  two  orders irrespective  of  the  subject-matter of  the  appellate  or revisional  order  and the scope of the appeal  or  revision contemplated  by the particular statute.  The application of the  doctrine  depends  on the nature of  the  appellate  or revisional order in each case and the scope of the statutory provisions   conferring   the    appellate   or   revisional jurisdiction."

   In a recent decision in Kunhayammed vs.  State of Kerala 2000  (6) SCC 359, this Court held that an order  dismissing special leave petition, more so when it is by a non-speaking order,  does not result in merger of the order impugned into the order of the Supreme Court.

   In  the  instant  case,  there is  no  question  of  the application  of  the  doctrine  of merger.   As  the  second appellant  Radhulal died during the pendency of the  appeal, and in the absence of his legal heirs having taken any steps to  prosecute  the Second Appeal, the decree passed  by  the First  Appellate Court must be deemed to have become  final. By  virtue of the order passed by the First Appellate Court, the  plaintiff’s suit for specific performance was  decreed. Failure  on  the part of the legal heirs of Radhulal to  get themselves  impleaded  in the Second Appeal and  pursue  the matter    further   shall    not    adversely   affect   the plaintiff-decree  holder as it would be against the  mandate of  Rule  9  of  Order 22, Code  of  Civil  Procedure.   The impugned order is, therefore, not sustainable in law and the same  is set aside and the appeal is allowed.  The Executing Court  may proceed with the execution proceedings.   Parties to bear their respective costs.