Vikram Bhalchandra Ghongade vs The State of Maharashtra through Collector Wardha

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO……………OF 2025 (Arising out of Special Leave Petition (Civil) No. 9947 of 2024)

VIKRAM BHALCHANDRA GHONGADE APPELLANT VERSUS THE STATE OF MAHARASHTRA & ORS. RESPONDENTS

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

Signature Not Verified Court on the ground that the appeal preferred by the defendant Digitally signed by KAPIL TANDON

Nos. 4 and 5 could not be stated to have abated notwithstanding Date: 2025.11.06 16:22:12 IST Reason:

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 1 of 12

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

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 2 of 12 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

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 3 of 12 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 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

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 4 of 12 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

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 5 of 12 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 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

1 2007 INSC 495

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 6 of 12 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

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 7 of 12 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 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

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 8 of 12 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 decision in Bibi Rahmani Khatoon and

2 Civil Appeal No. 2275 of 1994 decided on 11.01.1994 3 2001 INSC 263

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 9 of 12 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.

4 1981 INSC 100

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 10 of 12

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 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.

5 1954 INSC 45

Civil Appeal arising out of SLP(Civil) No. 9947 of 2024 Page 11 of 12

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.

…………………………………………..J. [PAMIDIGHANTAM SRI NARASIMHA]

…..………………………..J. [ATUL S. CHANDURKAR] NEW DELHI, NOVEMBER 06, 2025.

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