Supreme Court - Daily Orders
Sahebroa Nagorao Masal vs Radhabai Rama Masal on 11 August, 2025
Author: Pankaj Mithal
Bench: Pankaj Mithal
ITEM NO.41 COURT NO.11 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 10642/2025
[Arising out of impugned final judgment and order dated 17-12-2024
in CWP No. 12142/2015 passed by the High Court of Judicature at
Bombay at Aurangabad]
SAHEBROA NAGORAO MASAL & ORS. Petitioner(s)
VERSUS
RADHABAI RAMA MASAL & ORS. Respondent(s)
IA No. 95651/2025 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
Date : 11-08-2025 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE PANKAJ MITHAL HON'BLE MR. JUSTICE PRASANNA B. VARALE For Petitioner(s) :
Mr. Makrand Adkar, Adv.
Mr. Pravin Waman Satale, Adv.
Mr. Rishabh Jain, Adv.
Mr. Shantanu Makrand Adkar, Adv.
Mr. Bhushan, Adv.
Mr. Rajiv Shankar Dvivedi, AOR For Respondent(s) :
Mr. Ravi Prakash Mehrotra, Sr. Adv. Mr. Aniruddha Awalgaonkar, Adv.
Mr. Radhesham Jaju, Adv.
Ms. Surbhi Kapoor, AOR UPON hearing the counsel the Court made the following O R D E R
1. Heard learned counsel for the petitioner Mr.Pravin Waman Satale and learned senior counsel Mr.Ravi Prakash Mehrotra appearing for the Signature Not Verified Digitally signed by SONIA BHASIN Date: 2025.08.13 respondents.09:39:13 IST
Reason:
2. A suit for declaration for title and 1 possession was dismissed by the Trial Court in 1997 but the said decree was reversed in first appeal vide judgment and order dated 20.10.2003 and the suit stood decreed. However, before the said decree could have been passed the defendant Rama died on 19.11.2023 but this fact was not brought to the notice of the Court when the appeal was heard. Thus the decree passed on 20.10.2003 was admittedly against a dead person and was a nullity.
3. The said decree was put in execution. During the pendency of the execution proceedings, an application was filed by the plaintiffs for getting the heirs and legal representatives of the deceased defendant substituted. The said substitution application was filed on 23.11.2009. It was allowed by the Executing Court vide order dated 12.08.2010.
4. This order was challenged from the side of the judgment debtor(s)/legal representative(s) by filing a writ petition. The said writ petition came to be allowed vide judgment and order dated 14.10.2011 holding that as the appeal had abated no decree could not have been passed against a dead person and thus it is a nullity.
5. The aforesaid judgment and order of the High Court holding that the decree passed in favour of the plaintiff is a nullity has attained finality. 2
6. Thereafter the plaintiff applied to the First Appellate Court that passed the decree for substitution of the heirs and legal representatives of the deceased defendant along with an application for condoning the delay. The said application was allowed on the ground that the learned counsel for the defendant had not submitted any information with regard to his death and had rather argued the matter on merits. The said order of the First Appellate Court dated 04.09.2015 on being challenged in a writ petition has been set aside and substitution had been rejected.
7. It is in this background that the present special leave petition has been filed.
8. The contention of learned counsel for the petitioner is that as the defendant failed to discharge his mandatory duty of informing the Court about the death of the defendant, the Court has rightly allowed the substitution.
9. Admittedly, the defendant had died on 19.11.2002 and the appeal was allowed on 20.10.2003 decreeing the suit. The decree was ex facie against a dead person which is a nullity. The substitution permitted by the Executing Court was set aside by the High Court vide order dated 14.10.2011 holding the decree to be nullity. This order is final and 3 conclusive and as such, after the said order, no substitution could have been permitted by any Court much less the First Appellate Curt, which decided the appeal.
10. Moreover, no such application could be maintained in a decided appeal in as much as the Court become functus officio as soon as the appeal is decided.
11. In view of the aforesaid facts and circumstances, we find no substance in the present petition and the same is dismissed.
12. Pending application(s), if any, shall stand disposed of.
(SONIA BHASIN) (NIDHI MATHUR)
ASSISTANT REGISTRAR-CUM-PS COURT MASTER (NSH)
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