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TMI Blog2001 (5) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the decree granting specific performance. During the pendency of the Second Appeal, plaintiff Laxmi Lal died and his legal representatives were brought on record as respondents in the Second Appeal. It is admitted by the parties that while the Second Appeal was pending, Radhu Lal died on 14.12.1990 and this fact was not brought to the notice of the Court and the appeal was dismissed on 23.5.1991. The legal heirs of the deceased Radhu Lal did not take any steps to have the judgment in the Second Appeal set aside. The legal representatives of the decree-holder Laxmi Lal filed Execution Case No. 3/93 against the legal representatives of the deceased Radhu Lal. They resisted the execution application and contended that the decree under exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the learned Single Judge committed a serious error of law in holding that there was a merger of the decree passed by the High Court in the Second Appeal with that of the decree passed in the First Appeal. It was argued that as the second appellant Radhu Lal died while the appeal was pending and no steps were taken by his legal heirs to come on record as appellants, the Second Appeal should be treated to have abated and when the Second Appeal had abated, there was no question of any merger of the First Appellate decree with the order, if any, passed in the Second Appeal. According to the appellants' Counsel, there was no decree at all in the Second Appeal and the judgment passed in the Second Appeal is a nullity as it had been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recovered from the estate of the deceased plaintiff. Rule 11 of Order 22 says that the provisions contained in Order 22 shall be applicable to appeals and so far as the word plaintiff shall be held to include an appellant, the word defendant shall be held to include respondent and the word suit an appeal. Rule 9 of Order 22 states about the effect of abatement or dismissal. Rule 9 is to the following effect:- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleaded in the Second Appeal proceedings and as it was not done, the Second Appeal should be taken to have abated by operation of law. Therefore, the question that requires to be considered is that when there was abatement of the Second Appeal, can there be a merger of the same with the decree passed by the First Appellate Court? Before considering the question of merger, we have to consider the effect of abatement. When the Second Appeal had abated and the legal representatives of the appellant were not brought on record, the decree, which was passed by the First Appellate Court, would acquire finality. A similar matter came up before this Court in Rajendra Prasad and another Vs. Khirodhar Mahto and Others 1994 Supp. (3) SCC 314 wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was dismissed, as the heirs of Tapeshari Keur were not brought on record. The original plaintiffs 1 2 carried the matter to this Court by special leave. It was contended that the plaintiffs 1 2 were entitled to the benefit of preliminary decree. Ultimately, this Court held that whether Tapeshari Keur was the daughter of Ramyad Mahto or not was required to be gone into only when her legal representatives were brought on record. It was held that the decree against a dead person was a nullity and, therefore, the declaration by the First Appellate Court that Tapeshari Keur was not a daughter of Ramyad Mahto was not valid in law. The High Court had held that the decree of the Appellate Court was a nullity and the respondent did not file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings the order or judgment is passed by the superior court determining the rights of parties, it 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 principle that there cannot be, at one and the same time, more than one operative order governing 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. In the course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is continuation of the suit, came to be gradually extended to other proceedings like Revisions and even the proceedings before quasi- judicial a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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