Kiran Raj

The Supreme Court Division Bench of Justices Pamidighantam Sri Narasimha and Atul S. Chandurkar held that a decree which is a nullity can be challenged at any stage, including during execution, and set aside the Bombay High Court’s order that had refused execution of a trial court decree. The Bench found that the High Court had erroneously treated the first appellate court’s decree as valid, despite it being issued in favour of parties who had died before the appeal was heard. The case involved agricultural land originally allotted to an ex-serviceman, later re-allotted to others. The Court clarified that though the trial court’s decree had merged with the appellate decree, the latter being a nullity could not operate in law, and the trial court’s decree alone was enforceable.

The matter arose from a decree passed by the trial court on August 14, 2006, declaring the original plaintiffs, legal heirs of an ex-serviceman, as owners of agricultural land from Survey Nos. 106 and 107/1 at Village Takarkheda, Taluka Arvi, District Wardha, Maharashtra. The land had been allotted to the ex-serviceman, and upon his death, was re-allotted by the Collector to other individuals. The plaintiffs sought a declaration that such re-allotment was illegal and prayed for possession. The trial court decreed in their favour, holding the re-allotment to defendants as invalid.

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Defendant Nos. 4 and 5 appealed under Section 96 of the Code of Civil Procedure, 1908. Before the appeal was heard, defendant No. 4 died on October 27, 2006, and defendant No. 5 on September 20, 2010. Their deaths were not brought to the court’s notice, and the first appellate court heard the appeal on September 28, 2010, and decided it on October 20, 2010, partly modifying the decree. The plaintiffs filed a second appeal under Section 100, which was initially treated as abated against the deceased defendants but later restored and withdrawn, leading the plaintiffs to initiate execution proceedings of the trial court’s decree in 2022.

The executing court dismissed the application, holding that the first appellate decree, having modified the trial court’s decree, was enforceable. The Bombay High Court upheld this order on March 11, 2024. The appellant contended that since both appellants in the first appeal had died before the hearing, the decree passed in their favour was a nullity under Order XXII Rules 2(2) and 6 of the Code. The State and other respondents argued that the decree of the first appellate court prevailed.

The Bench recorded that “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 Court stated that “the decree passed by the trial Court, therefore, is liable to be executed.”

The Court observed that “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.”

It recorded that “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.” The Court added that “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.”

The Bench stated that “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.”

Referring to earlier rulings, the Court noted that “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.”

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The Bench further recorded that “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.”

The Court directed: “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.”

Case Title: Vikram Bhalchandra Ghongade v. The State of Maharashtra & Ors.
Neutral Citation: 2025 INSC 1283
Case Number: Civil Appeal arising out of SLP (Civil) No. 9947 of 2024
Bench: Justice Pamidighantam Sri Narasimha; Justice Atul S. Chandurkar