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2001(4) Supreme 165
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Umesh C. Banerjee & K.G. Balakrishnan, JJ.
Amba Bai & Ors. -Appellants
versus
Gopal and Ors. -Respondents
Civil Appeal No. 4156/1998
Decided on 8-5-2001
Counsel for the Appellants : Tapas C. Ray, Sr. Advocate and Sushil Kr. Jain and K.G. Arora, Advocates.
For the Respondents : Ashok Mathur, Advocate.
Held : 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? (Para 7)
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 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]. If the Judgment 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 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 of the suit, came to be gradually extended to other proceedings like Revisions and even the proceedings before quasi-judicial and executive authorities. (Paras 10 & 11)
Held consequently : 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 plaintiffs 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. (Para 14)
Certainly. Based on the provided legal document, here are the key points:
When a Second Appeal abates due to the death of a party and the legal heirs are not brought on record, the decree passed by the First Appellate Court becomes final and binding (!) (!) .
The doctrine of merger applies only when there are two independent operative orders or decrees, with the higher court's order absorbing or extinguishing the lower court's decree. In this context, the order passed by the appellate court merges into the order passed by the higher court, thereby superseding the previous decree (!) (!) .
If an appeal or revision is dismissed or abates due to the death of a party, the order or decree of the lower court or authority remains valid unless it is nullified by proper legal proceedings. A judgment passed against a dead person is considered a nullity and cannot form the basis for execution (!) (!) .
The failure to bring legal heirs on record in proceedings where a party has died results in the abatement of the appeal or suit, and the final decree or order in such cases is deemed to have become final and executable (!) (!) .
The concept of merger is not rigid and depends on the nature and scope of the appellate or revisional order. Not all orders passed in appeals or revisions automatically merge; the specific context and legal framework determine whether merger occurs (!) (!) .
The order dismissing a special leave petition or similar non-speaking order does not result in the merger of the impugned order into the order of the higher court (!) (!) .
In cases where the appeal has abated due to non-implementation of legal procedures (such as not prosecuting the appeal after the death of a party), the original decree passed by the lower court or appellate court remains effective and can be executed (!) (!) .
The legal process mandates that parties or their legal representatives must take timely steps to be brought on record in appeals or proceedings involving their rights. Failure to do so can lead to the finality of the decree or order and impact subsequent execution proceedings (!) (!) .
Would you like a more detailed analysis or clarification on any specific aspect?
JUDGMENT
Balakrishnan, 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.
2. 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 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.
3. 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
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