A. M. FAROOQ, J. ( 1 ) HEARD. THESE applications are filed by the appellant to bring the L. Rs of the deceased respondent on record. It is stated that the said respondent died in February 1998 when the appeal before the lower Court was pending consideration. Admittedly, the appellant who is the appellant before the lower Appellate Court did not bring the L. Rs of the deceased respondent on record when the death of the said respondent occurred during the pendency of the first appeal before the lower Appellate Court. The appeal therefore abated before the lower Appellate Court because of the failure of the appellant to bring the L. Rs of the deceased respondent on record. The said appeal before the lower Appellate Court therefore automatically gets abated and when once the appeal gets abated by virtue of the death of the party, the lower Appellate Court could hot have passed any. order on the said appeal and any order passed in the said appeal will be a nullity. ( 2 ) THE Hon'ble Supreme Court in Amba Bai and Others v Gopal and Others, has held that:"in a case where the party dies pending the appeal the legal heirs of the dead party should be brought on record before the Court where the death occurred. In that case the death of the party occurred before the High court during the pendency of the second appeal and the High court was not informed about the death and the legal heirs of the deceased appellant did not take any steps to have the judgment in the second appeal set aside. As the judgment in the second appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity and as legal representatives did not take steps to get themselves impleaded in the second appeal proceedings, the second appeal should be taken to have abated by operation of law. And when there was abatement of the second appeal; there can be no merger of the same with the decree passed by the first appellate Court. It was held that the decree of the first Appellate court under execution becomes operative and the decree passed by the High Court has become a nullity in view of the death of the party". It was held that the decree of the first Appellate court under execution becomes operative and the decree passed by the High Court has become a nullity in view of the death of the party". ( 3 ) THE learned Counsel appearing for the appellant cited before me a judgment passed by the Hon'ble Single Judge of this Court in Special land Acquisition Officer v Sanjeevappa and Others, wherein this Court held that:"where pending a suit or appeal, a party thereto dies, but in ignorance thereof a decree is passed and an appeal is preferred against it, and the question of substitution of heirs or setting aside the abatement is raised in appeal, the Court which is competent to deal with, it is the Court in which the abatement took place and not the Court of appeal. This Court further held in the said judgment that the Appellate Court where the appeal is filed against the order passed by the lower Court despite the death of the party when his heirs being not brought on record, this appellate Court should set aside the decree of the lower Court and remanded the Court below to deal with the application for setting aside abatement and substituting heirs of the deceased". ( 4 ) I am afraid that in view of the earlier judgment cited by me of the hon'ble Supreme Court, the law laid down by this Court in the above judgment cannot be accepted. The Hon'ble Supreme Court in the case of amba Bai, supra, has held that the order passed in an appeal or proceeding by a Court, where the abatement has taken place on the death of a party and the said order is passed without knowing the abatement and when the heirs of the dead party was not brought on record, entire judgment becomes nullity and it cannot be acted upon. When the judgment itself is a nullity, the question of dealing with the matter in a second appeal does not arise because the order passed by the lower Court is no order in the eye of law and the party affected can take steps before that Court and seek to set aside the abatement and then re-argue the appeal. ( 5 ) HON'ble Supreme Court in Amba Bai's case, supra, has held in paras 7, 8 and 9 as follows. "7. ( 5 ) HON'ble Supreme Court in Amba Bai's case, supra, has held in paras 7, 8 and 9 as follows. "7. In the instant case, deceased Radhu Lai, the second appellant died on 14-12-1990 and his death was not brought to the notice of the Court and the learned Single Judge disposed of the appeal on merits by dismissing the second appeal on 25-3-1991. As the judgment in the second appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity. When the second appellant, Radhu lai died on 14-12-1990, his legal representatives could have taken steps to get themselves impleaded 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? 8. 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 v Khirodhar Mahto, wherein it was held that as a consequence of the abatement of the appeal filed against final decree in a partition suit, the preliminary decree would become final. In that case, the appellants and Tapeshari Kuer filed a suit for partition of immovable properties, including plaint 4 and 5 properties. The property originally belonged to one Bishni Mahto. He had two sons, namely Sheobaran Mahto and Ramyad Mahto. Tapeshari Kuer was the daughter of Ramyad Mahto. Plaint 4 and 5 properties were not partitioned between these two sons of Bishni mahto. Ramyad Mahto, the father of Tapeshari Kuer died and she succeeded to one-half of the undivided interest inherited from her father in respect of plaint Item No. 4 property. The Trial Court decreed the suit declaring the half share of Tapeshari Kuer in plaint 5 of the property. Ramyad Mahto, the father of Tapeshari Kuer died and she succeeded to one-half of the undivided interest inherited from her father in respect of plaint Item No. 4 property. The Trial Court decreed the suit declaring the half share of Tapeshari Kuer in plaint 5 of the property. Appellants who had joined as plaintiffs 1 and 2 were held to have half share in plaint Item No. 4 by virtue of the gift deed executed by her. The defendants in the suit filed an appeal and pending appeal, Tapeshari Kuer died. Her legal heirs were not brought on record. The Appellate Court gave a finding that Tapeshari Kuer was not the daughter of Ramyad mahto and the appellant did not acquire any interest in the undivided share. The suit was dismissed, as the heirs of Tapeshari kuer were not brought on record. The original plaintiffs 1 and 2 carried the matter to this Court by special leave. It was contended that the plaintiffs 1 and 2 were entitled to the benefit of preliminary decree. Ultimately, this Court held that whether Tapeshari kuer 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 Kuer 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 any appeal against that part of the decree, the result was that the preliminary decree became final. 9. In Mst. Bibi Rahmani Khatoon v Harkoo Gope, this Court held at page 1453 at para 10 as under. "the concept of abatement is known to civil law. If a party to a proceeding either in the Trial Court or any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have an impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree or order under appeal or revision would become final". ( 6 ) IN view of the above principle laid down by the Hon'ble Supreme Court the judgment of this Court in Special Land Acquisition Officer's case, supra, is no more good law. This second appeal against a judgment and decree which is a nullity cannot be maintainable and hence no order could be passed by this Court in such an appeal. ( 7 ) SINCE the sole defendant who is the sole respondent in the appeal died during the pendency of the appeal before the lower Appellate Court and his heirs having not brought on record and the appeal was disposed of without the heirs being brought on record, the order of the lower appellate Court has to be held as a nullity and it does not exist in the eye of law. In the said circumstances this second appeal itself is not maintainable and there is no question of this Court setting aside such an order and remanding the matter to the lower Appellate Court. It is for the party to take such steps as he is advised before the lower Appellate court where the appeal abated. In the result this appeal is disposed of as having not maintainable. --- *** --- .