JUDGMENT : A.K. Rath, J - Defendants are the appellants against a confirming judgment. 2. Since the appeal is to be disposed of on a short point, the facts need not be recount in detail. Suffice it to say that the respondents as plaintiffs instituted the suit for declaration of title, confirmation of possession, easementary right as well as right to irrigation, fishery and permanent injunction. The defendant nos.3 and 4 filed a written statement denying the assertions made in the plaint. The defendant nos.1, 2, 5 and 6 were set exparte. The suit was decreed. Felt aggrieved, the defendants filed T.A. No.20 of 1995 before the learned District Judge, Sambalpur, which was eventually dismissed. Hence, this second appeal. 3. Heard Mr. R.P. Mohapatra, learned A.G.A. for the Stateappellants and Mr. M.K. Agarwal, learned counsel, on behalf of Mr. D.P. Dhal, learned counsel for the respondents. 4. Mr. Mohapatra, learned A.G.A. for the State-appellants submits that during pendency of the first appeal, the respondent no.1- plaintiff no.1 died on 13.7.1997 leaving behind his legal heirs and successors. But no application for substitution was filed. There was delay in filing the second appeal. Notice on the question of limitation was issued. It was returned unserved from respondent no.1 with a report that he was dead. Thereafter the appellants filed applications for substitution, setting aside abatement and condonation of delay. He further submits that the matter may be remitted back to the learned first appellate court. 5. The question does arise as to when death of plaintiff no.1- respondent no.1 has not occurred during pendency of the second appeal, whether those applications should be sent to the lower appellate court for disposal on merit ? 6. This Court in the case of State of Orissa & another vs. Sartika Chandra Parida & others (disposed of on 23.08.2017 in S.A. No.241 of 1992) held: "07. In Harish Chandra Habuda vs. Kanakamani Mohapatra & others, (1995) 2 OrissaLR 157, defendant no.3 died during pendency of the appeal in the court of the learned District Judge. No substitution of his legal representatives was made. Learned appellate court having allowed the appeal, defendant no.1 filed second appeal before this Court. Applications for substitution, setting aside abatement and condonation of delay were filed before this Court. No substitution of his legal representatives was made. Learned appellate court having allowed the appeal, defendant no.1 filed second appeal before this Court. Applications for substitution, setting aside abatement and condonation of delay were filed before this Court. This Court set aside the judgment and decree passed by the learned District judge and remitted the matter to him with a direction to dispose of the applications according to law and to dispose of the appeal afresh." 7. The decree passed against a dead man is a nullity. Admittedly, the plaintiff no.1-respondent no.1 died during pendency of the first appeal. Accordingly the judgment and decree passed by the learned District Judge, Sambalpur are set aside. The matter is remitted back to the learned appellate court to hear the applications for substitution, setting aside abatement and condonation of delay on merit and dispose of the appeal afresh. The appeal is allowed to the extent indicated above. No costs. Final Result : Allowed