IMPORTANT POINTS
(1) Execution of decree – If a decree is a nullity, its invalidity can be set up whenever and wherever it is sought to be enforced, even at stage of execution.
(2) Where decree of first Appellate Court is a nullity, plaintiffs will be entitled to execute decree passed by Trial 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 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 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 preferre