Abatement in second appeal preserves the first appellate decree for execution where no legal representatives were substituted.

Order 22 CPC governs the effect of a party's death in appeal, and where the sole or relevant appellant dies without substitution of legal representatives within time, the appeal abates by operation of law. A judgment passed against a deceased person is a nullity, but it does not displace the decree under challenge where the appeal has abated in law. The doctrine of merger applies only when a superior court validly exercises appellate jurisdiction and determines the parties' rights by a competent order. On that basis, the first appellate decree survived for execution, merger did not apply, and the execution proceedings remained maintainable.

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Issues: Whether the decree passed in the second appeal against a deceased appellant was a nullity and whether, on abatement of the second appeal, the decree of the first appellate court survived for execution without merger.

Analysis: Order 22 of the Code of Civil Procedure, 1908 governs the effect of death of a party in appeal and the consequences of failure to substitute legal representatives within time. When the sole or relevant appellant dies and no steps are taken to bring the legal representatives on record, the appeal abates by operation of law. In such a situation, the appeal does not destroy the operative effect of the decree under challenge; instead, the decree of the lower appellate court attains finality. The doctrine of merger applies only where the superior court has validly exercised appellate jurisdiction and determined the rights of parties by a competent order. A judgment rendered against a dead person is a nullity and cannot defeat the decree-holder where the appeal has in law abated.

Conclusion: The second appellate order did not extinguish the first appellate decree, the doctrine of merger had no application, and the execution proceedings were maintainable. The decision was in favour of the appellant.

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