Institute of Legal and Management Studies

The Supreme Court recently observed that a challenge to a decree that is a 'nullity' can be set up at any stage, including the stage of execution.

"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 as held in Kiran Singh and others vs. Chaman Paswan and others (1954 INSC 45).", the court said.

A bench of Justice P.S. Narasimha and Justice A.S. Chandurkar set aside the Bombay High Court's order refusing execution of a trial court decree, observing that the High Court had wrongly treated the First Appellate Court's decree as enforceable. The Court clarified that once the trial court's decree was reversed in appeal, it merged with the appellate decree, but since the First Appellate Court's decree was passed in favour of a party who had died before their appeal was heard, it was a nullity in law and could not be executed.

The case concerned land allotted to ex-serviceman Arjunrao Thakre. After his death, it was re-allotted to others, prompting his heirs to sue. In 2006, the trial court ruled in their favour, declaring the re-allotment illegal. Defendants 4 and 5 appealed, but both died before the appeal was heard, and their heirs were never substituted. Despite this, the appellate court modified the decree in 2010. When Thakre's heir, Vikram Ghongade i.e., Appellant, sought to execute the 2006 decree, both the executing court and the High Court refused, holding that it had merged with the appellate decree.

Setting aside the impugned finding, the judgment authored by Justice Chandurkar observed that since the first appeal was heard and decided after the death of both appellants before the First Appellate Court, the proceedings were not saved by procedural rules. The resulting decree was not just voidable, but a complete nullity.

Moreover, since the First Appellate Court's decree was a nullity, the trial court's decree did not merge with it and consequently stood revived, making it executable.

It was in this context, the Court held that the plea regarding the First Appellate Court's decree being nullity, to enforce the trial court's decree, can be raised at any stage even at the stage of the execution.

Cause Title: VIKRAM BHALCHANDRA GHONGADE VERSUS THE STATE OF MAHARASHTRA & ORS.

Citation : 2025 LiveLaw (SC) 1067

Click here to read/download the judgment

Also From Judgment: Judgment Passed In Favor Of Party Who Died Before Hearing Is Nullity If Legal Heir Wasn't Brought On Record : Supreme Court