Summary
Where both appellants in a first appeal had died before the appeal was heard and their legal heirs were never brought on record, the first appellate decree passed in their favour was a nullity. The trial court decree therefore remained executable, and the executing court and High Court erred in refusing execution on the footing that it had merged in the appellate decree.
Issues
- Whether a first appellate decree passed in an appeal whose appellants had both died before the hearing, without their legal heirs being substituted, is a nullity.
- Whether the appeal was saved because it was decided before the ninety-day period for bringing the legal heirs on record had expired after the second appellant's death.
- Whether the decree-holder could execute the trial court decree notwithstanding its modification by the first appellate court.
Provisions considered
- Order XXII Rule 6, Code of Civil Procedure, 1908The rule saves proceedings from abatement only where a party dies between the conclusion of the hearing and the pronouncement of judgment. Since both appellants had died before the appeal was heard, the first appeal was not protected by this rule. (¶¶ 8, 11)
- Article 120 of the Schedule, Limitation Act, 1963The Court accepted that abatement cannot occur before the ninety-day period for substituting legal representatives expires, but held that this did not validate a judgment pronounced in favour of appellants who were already dead when the appeal was heard and decided. (¶ 12)
- Section 96, Code of Civil Procedure, 1908The first appeal against the trial court decree had been filed under this section by two defendants, both of whom died during its pendency; the decree passed in that appeal was held to be a nullity. (¶¶ 5, 11)
Held
- A judgment and decree pronounced in an appeal in favour of appellants who had died before the appeal was heard, without their legal heirs being brought on record, is a nullity without the force of law. (¶¶ 10, 12, 13)
- Order XXII Rule 6 of the Code did not save the first appeal, because the appellants died before, not after, the conclusion of the hearing. (¶ 11)
- Although abatement cannot occur before the ninety-day limitation period for substitution expires, the fact that the appeal was decided within that period after one appellant's death did not cure the defect, since both appellants were dead when the appeal was heard and decided. (¶ 12)
- Applying the principle that abatement of an appeal leaves the decree under appeal final, the Court held that where an appeal is decided in favour of deceased appellants without substitution, the trial court decree governs the parties' rights and revives for execution. (¶ 13)
- The invalidity of a decree that is a nullity can be set up whenever and wherever it is sought to be enforced, including at the stage of execution; the executing court therefore could not refuse execution of the trial court decree on the ground that it had been superseded by the appellate decree. (¶ 14)
- The opposition of a defendant who had never challenged the trial court decree was of no avail, and the legal heirs of the deceased appellants had taken no steps to be impleaded at any stage. (¶ 15)
Result
Appeal allowed; orders of the executing court and the High Court set aside; execution proceedings restored to the executing court for decision in accordance with law; parties to bear their own costs.