AMBA BAI Vs. GOPAL BAI

JUDGEMENT

(1.) 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 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 appellant's 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.