AMBA BAI AND ORS. versus GOPAL AND ORS.

Citation: [2001] 3 S.C.R. 551 · Decided: 08-05-2001 · Supreme Court of India · Bench: U.C. BANERJEE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

AMBA BAI AND ORS. 
A 
v. 
~ 
GOPAL AND ORS. 
~ 
MAY 8, 2001 
[UMESH C. BANERJEE AND K.G. BALAKRISHNAN, JJ.] 
B· 
Civil Procedure Code, 1908-0rder 22, Rules, 3, p and ll-Appeal-
.) 
Abatement-Effect of-Suit for specific performance-Decreed by First 
Appellate Court--Second Appeal-Pendency of-Death of second Appellant c 
(Defendant)-Not brought to the notice of court-Legal representatives not 
impleaded as parties-Dismissal of Second Appeal-:-E!fect of-Held, Second 
-
Appeal should be deemed to have abated-Decree passed by First Appellate · 
Court would acquire finali~No merger of judgment, decree or order passed 
' 
I 
in Second Appeal with that passed in First Appeal. 
Doctrines 
D 
A. 
Doctrine of Merger-Scope and Applicability of 
Plaintiff filed a suit for specific performance against the defendant 
which.was dismissed by Trial Court Howeyer, on appeal, the Appellate Court E 
decreed the suit. Thereafter, defendant preferred a Second Appeal before the 
.High Court. During the ven(lency of Second Appeal plaintiff died and his 
... 
legal representatives were brought on reco,rd. Second appellant (Defel!dant) 
also died during th~ pendency of said appeal but that fact was not brought 
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"" 
to the notice of the court and the appeal was.dismissed. Appellant, legal 
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representatives of deceased plaintiff initiated execution proceedings against F 
respondent, legal representatives of defendant. Respondents resisted the 
execution application contending thafthe decree under execution passed by 
the High Court against a dead person was a nullity and hence, it would not 
be executed. Subordinate ,Judge rejected the said ~ontention. However, on 
revision, High Court held that the decree passed in the Second Appeal had G 
merged with the decree passed in tbe First Appeal and thus, the execution 
--
proceedings were liable to be dismissed. Hence the present appeal. 
,J,..,., 
On behalf of the appellants it was contended that when no steps were 
taken by the legal representatives of defeJ!dant to come on record as appellant51 
the Second Appeal should be treated to have abated and thus, Single Judge H 
551 
\ 
552 
SUPREME COURT REPORTS 
[2001] 3 S.C.R. 
A of High Court was not .iustified in holding that there was a merger of the 
decree passed in the Second Appeal with that of the decree passed in the 
-r 
· First Appeal. 
,,_ 
On behalf of respondents it was contended that the Second Appeal was 
B 
dismissed by the Single Judge of High Court at a ti~e when the appellant 
was already dead and such a judgnient being a nullity in the eye of law and 
Second Appeal being a continuation of the proceedings of the suit, there was 
no decree as such which was capable of being executed. 
Allowing the appeal, the Court 
c 
, HELD : 1.1. Single Judge. of the High Court was not justified in 
dismissing the execution proceedings holding that there was a merger of the 
deeree passed by the ffigh Court in the Second Appeal with that of the decree 
--
passed in the First Appeal. [554-C}'. 
' 
D 
1.2. Judgment or order of a11 inferior court, subjected to an appeal or 
revision before the superior court and the order or judgment passed by the 
superior court in such proceedings determining the rights of the parties, 
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 
prim.~iple that t.here cannot be, at one and the same time, more than one 
E operative order govemiitg 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. [557-G] 
.... 
. 
1.3. In the instant case, there is no question of application of the doctrine 
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of merger. As .the second appell!l"t died during the pendency of the appeal, 
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F the judgment passed wit~out the knowledge that appellant had died, being a 
t 
j~dgment passed against the dead._person, is a nullity. When the second 
appellant died his legal representatives would have taken steps to get 
themselves impleaded .in the Second Appeal Proceedings and as it was not 
done, the Second Appe~ should be taken to hav~ abated by operation of law. · 
G Thus, when the Second Appeal had. abated .and the l~al ,representatives of 
;.. 
appellant were not brought on record, t~e decree ~Yhich was passed by the 
First Appellate Court, would acquire finality. Failure on the part of legal 
heirs of defendant to get themselves implead

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