Introduction

This Supreme Court judgment resolves a recurring procedural conundrum at the intersection of abatement, substitution of legal representatives, and the doctrine of merger: What is the legal status of an appellate decree pronounced after all appellants have died before hearing, with no legal representatives on record—and can the trial court decree still be executed despite “merger”?

The appellant, legal heir of the original plaintiffs, sought to execute a 2006 trial court decree declaring the plaintiffs’ title and entitlement to possession over agricultural land originally allotted to their predecessor (an ex-serviceman), and invalidating a subsequent re-allotment by the Collector, Wardha to defendants 3–5. Only defendants 4 and 5 appealed. Both died before the first appellate hearing; their legal heirs were never brought on record. Nevertheless, the first appellate court partly allowed the appeal in 2010, modifying the trial decree. The executing court and the High Court refused execution of the trial decree, invoking merger and the absence of formal abatement (90-day period not expired when judgment was delivered). The Supreme Court has now set aside those orders.

This decision squarely holds that an appellate decree pronounced in favour of deceased appellants—who died prior to hearing and without substitution—is a nullity. Order XXII Rule 6 CPC does not save such a decree. Consequently, there is no merger; the trial court decree remains the only enforceable decree and can be executed. The Court also reiterates that the plea of nullity can be raised even at the execution stage.

Summary of the Judgment

• The Supreme Court allowed the appeal, set aside the orders of the executing court (21 June 2023) and the High Court (11 March 2024), and restored the execution proceedings.
• Key holding: The first appellate decree dated 20 October 2010 is a nullity because both appellants (defendants 4 and 5) had died before the appeal was heard (28 September 2010) and their legal heirs were not brought on record. Order XXII Rule 6 CPC does not apply because the deaths occurred before the hearing; thus, the appellate court’s judgment had no force of law.
• Result: The trial court decree dated 14 August 2006 never validly merged into any appellate decree. It survives and is executable.
• Principles reaffirmed: A decree that is a nullity can be challenged whenever and wherever it is sought to be enforced, including at the execution stage (Kiran Singh v. Chaman Paswan). If an appeal abates or is non est, the judgment under appeal attains finality or remains operative (Bibi Rahmani Khatoon v. Harkoo Gope).

Factual and Procedural Background

• Original allotment: Agricultural land from Survey Nos. 106 and 107/1 at Village Takarkheda, Taluka Arvi, District Wardha, Maharashtra, allotted to ex-serviceman Mr. Arjunrao Thakre.
• Re-allotment: After his death, the Collector, Wardha re-allotted the land to defendants 3–5. The legal heirs challenged this re-allotment.
• Trial Court (14 August 2006): Decreed the suit (RCS No. 181/2001). Held plaintiffs’ predecessor’s allotment valid, declared plaintiffs owners, found re-allotment to defendants 3–5 illegal, and passed a decree for possession.
• First Appeal: Only defendants 4 and 5 appealed under Section 96 CPC. Defendant 4 died on 27 October 2006; defendant 5 died on 20 September 2010. The appeal was heard on 28 September 2010 (after both deaths); decided on 20 October 2010, partly modifying the trial decree.
• Second Appeal: Plaintiffs filed a second appeal under Section 100 CPC. The Registrar (Judicial) initially disposed it as abated against defendants 4 and 5. On plaintiffs’ application, the High Court restored the second appeal noting the first appeal had abated because appellants died during pendency and no legal heirs were on record. Plaintiffs then withdrew the second appeal, asserting the trial decree remained in force.
• Execution: Plaintiffs filed Regular Darkhast No. 22/2022 to execute the 2006 trial decree. The executing court dismissed the execution, holding the appellate decree controlled due to merger, and reasoning that abatement had not occurred since the 90-day substitution period from 20 September 2010 had not expired on 20 October 2010.
• High Court (11 March 2024): Dismissed writ petition; upheld the executing court’s view.
• Supreme Court (6 November 2025): Reversed both orders; restored execution.

Issues

1. Whether a first appellate decree rendered after all appellants had died before hearing, without substitution of legal representatives, is a nullity, notwithstanding that the 90-day limitation for substitution had not expired on the date of judgment.
2. Whether Order XXII Rule 6 CPC (saving when a party dies after hearing but before pronouncement) applied in the circumstances.
3. Whether the doctrine of merger precluded execution of the trial court decree when the appellate decree was itself a nullity.
4. Whether the plea of nullity could be raised at the execution stage.

Analysis

1) Precedents Cited and Their Influence

• Rajendra Prasad and another v. Khirodhar Mahto and others (Civil Appeal No. 2275 of 1994, decided 11.01.1994)

  Relied upon for the proposition that a judgment rendered in favour of a dead person is a nullity. The Court here uses that principle to invalidate the appellate judgment because both appellants had died prior to the hearing and no legal representatives were on record.

• Amba Bai and others v. Gopal and Others, 2001 INSC 263

  Cited to reinforce that appellate proceedings cannot validly culminate in a judgment where a necessary party has died prior to hearing and substitution has not occurred; such adjudication is non est. The case supports the conceptual dichotomy between abatement and nullity.

• Bibi Rahmani Khatoon and others v. Harkoo Gope and others, 1981 INSC 100

  Quoted extensively. It clarifies that if a party dies and proceedings abate for want of substitution, the appeal or revision abates without affecting the judgment under challenge, which becomes final. The Supreme Court analogizes: if an appellate decree is passed in favour of deceased appellants (pre-hearing deaths with no substitution), the judgment is a nullity; thus the trial decree remains the operative decree.

• Kiran Singh and others v. Chaman Paswan and others, 1954 INSC 45

  Invoked for the foundational principle that a decree that is a nullity can be challenged “whenever and wherever” it is sought to be enforced, including at the execution stage. This directly answers the executing court’s refusal to examine nullity.

• P. Chandrasekharan and others v. S. Kanakarajan and others, 2007 INSC 495

  Mentioned by the appellant, though not central to the ratio. The case addresses abatement dynamics but does not detract from the present ruling that a decree rendered in favour of deceased appellants before hearing is a nullity irrespective of the 90-day abatement period.

2) The Court’s Legal Reasoning

a) Death before hearing vs. death after hearing (Order XXII Rule 6 CPC)

Order XXII Rule 6 CPC saves proceedings only where the death occurs after conclusion of hearing but before pronouncement of judgment. Here, defendant 4 died in 2006, and defendant 5 died on 20 September 2010; the hearing occurred on 28 September 2010—after both deaths. Consequently, Rule 6 had no application. The appellate court, therefore, delivered a judgment when there was no living appellant on record.

b) Abatement’s 90-day period does not validate a decree passed for a dead party

The executing court held that because 90 days from 20 September 2010 had not expired on 20 October 2010, the appeal had not abated. The Supreme Court agrees that formal abatement occurs upon expiry of limitation (Article 120, Limitation Act, 1963). However, it distinguishes abatement from the more fundamental defect of pronouncing judgment in favour of a dead party: even if formal abatement had not yet occurred, the appellate court nonetheless lacked a living appellant at hearing and pronouncement. Such a decree is a nullity because it purports to adjudicate rights of non-existent parties. The nullity doctrine is not contingent on the abatement clock; it arises from the absence of a necessary party at the time of hearing and decision.

c) No merger when the appellate decree is a nullity

Ordinarily, the trial court’s decree merges into a valid appellate decree, and execution must proceed on the latter. But merger presupposes a valid appellate adjudication by a competent court with proper parties before it. A decree that is null and void cannot absorb or supersede the trial decree. Therefore, the trial decree of 14 August 2006 remained the only enforceable decree.

d) Nullity can be raised at execution

Relying on Kiran Singh, the Court reiterates that a decree void for nullity can be impeached at the stage of execution. The executing court erred in refusing to test the validity of the appellate decree and in insisting on executing a decree that lacked legal existence.

e) Conduct of parties

Notably, the legal heirs of defendants 4 and 5 never sought substitution in the appeal, the execution, or before the Supreme Court. Defendant 3, who did not appeal the trial decree, could not salvage the invalid appellate decree to defeat execution. This underscores the strict consequences of non-substitution where parties die prior to the appellate hearing.

3) Impact and Prospective Significance

• Clarifies the boundary between abatement and nullity: Even if abatement has not technically set in (within 90 days), a decree pronounced after the death of all appellants before the hearing is non est. This sharper doctrinal line will aid courts and litigants confronting mid-appeal deaths.
• Strengthens procedural discipline in appellate practice: Counsel must promptly disclose deaths and move for substitution. Failure risks annihilating appellate outcomes rather than merely raising curable defects.
• Refines the merger doctrine: Merger operates only upon a valid appellate adjudication. Nullity at the appellate level leaves the trial decree intact and executable.
• Execution courts may assess nullity: Executing courts should not mechanically reject objections based on merger; they must engage with the nullity plea and can enforce the trial decree if the appellate decree is void.
• Registry and case management: The decision underlines the need for registries to track party deaths and ensure compliance with Order XXII and Article 120 to avoid void judgments.
• Substantive justice over procedural missteps: Where appellate processes go awry due to undisclosed deaths, this ruling ensures that the original, valid trial adjudication governs.

Complex Concepts Simplified

• Abatement: When a party dies and no legal representative is substituted within 90 days (Article 120 of the Limitation Act), the appeal/suit abates (i.e., comes to an end) as against that party. Abatement is a procedural termination; it can sometimes be set aside upon sufficient cause.
• Nullity: A decree is a nullity if the court lacked jurisdiction or the judgment was delivered in the absence of a necessary, living party (e.g., in favour of a deceased appellant who died before hearing and whose legal representatives were not on record). A null decree is void ab initio and may be challenged at any stage, including execution.
• Order XXII CPC: Governs what happens when parties die, marry, or become insolvent. Rules 3 and 4 require substitution of legal representatives; Rule 6 saves judgments if death occurs after hearing but before pronouncement; Rule 11 applies these rules to appeals.
• Order XXII Rule 6 (Saving clause): If a party dies after hearing is concluded, the court can still pronounce judgment; it will take effect as if pronounced before death. If death precedes the hearing, Rule 6 does not save the proceeding.
• Order XXII Rule 2(2): Where there are multiple plaintiffs/appellants or defendants/respondents and one dies, the suit/appeal may proceed if the right to sue survives to the survivors. Inseparable rights may require substitution to avoid partial abatement.
• Doctrine of Merger: A trial court decree merges into the appellate decree upon a valid appellate adjudication. If the appellate decree is a nullity, there is no merger; the trial decree remains enforceable.
• Execution and “Darkhast”: “Darkhast” is a term used in some jurisdictions for an execution application. Executing courts can test whether the decree presented for execution is void for nullity.

Practical Takeaways and Guidance

• Immediate disclosure of death: Counsel must inform the court if any party dies and promptly file substitution applications. Silence can render later judgments void.
• Check hearing dates vs. death dates: If death precedes the hearing and there is no substitution, any judgment is vulnerable as a nullity; Order XXII Rule 6 will not cure it.
• Don’t rely on the 90-day window to “shield” an imminent judgment: The presence of the 90-day period does not validate a judgment delivered for or against a dead party where the death occurred before hearing.
• Execution strategy: Where an appellate decree is arguably void (e.g., passed for/against dead parties), decree-holders may proceed to execute the trial decree and raise nullity to defeat objections based on merger.
• Registries and courts: Adopt systems to flag deaths, ensure substitution, and avoid pronouncing judgments in the absence of necessary parties.

Conclusion

The Supreme Court’s decision in Vikram Bhalchandra Ghongade v. State of Maharashtra lays down a clear and significant procedural rule: an appellate decree rendered after all appellants have died before the hearing—without substitution of legal representatives—is a nullity. Order XXII Rule 6 CPC does not save such judgments, and the mere fact that the 90-day period for substitution had not expired on the date of pronouncement is immaterial. In such circumstances, no merger occurs; the trial court decree remains the only operative decree and can be executed. The judgment powerfully reaffirms that nullity can be raised at the execution stage (Kiran Singh) and that if an appeal abates or is non est, the underlying judgment under appeal stands or becomes final (Bibi Rahmani Khatoon).

By rejecting a formalistic approach to abatement and insisting on the presence of living, properly represented parties at the appellate hearing, the Court has provided a principled roadmap for future cases. This ruling promotes procedural integrity, safeguards finality of valid trial decrees, and ensures that litigants cannot derive advantage from undisclosed deaths or laxity in substitution.