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Regular Second Appeal No. 306 of 1955, decided on 1st February, 1960.
O. XXII, rr. 3 & 4 ---"Abate"‑Meaning‑"To demolish" or "put an end to"‑Effect it context of rr, 3 sic 4,
The word "abate" is nowhere defined in the Code of Civil Procedure. The meaning given to it in Chambers's Twentieth Century Dictionary is "to demolish" or "to put an end to." Substituting these words in rules 3 and 4 of Order XXII of the Code of Civil Procedure it would mean that in the case of the death of the plaintiff his appeal is demolished or put an end to, and in the case of the death of the defendant the appeal against him is demolished or put an end to. In other words, on their death the appeal of one and the appeal against the other stands as being dismissed. The result of the dismissal of the appeal or putting an end to an appeal is that the decree appealed against stands intact. The deceased plaintiff is bound by it and the deceased defendant stands benefited by it. The word used in rules 3 and 4, is "shall", i.e., the decree of the trial Court stands intact so far as the deceased plaintiff and the deceased defendant whose legal representatives are not brought on the record are concerned.
O. XXII, rr. 3 & 4 Abatement in toto‑Test‑Joint decree as owners in favour of several persons against several defendants‑Death of one appellant and one respondent‑Legal representatives not brought on record Appeal, held, abated in toto.
With reference to abatement of suit or an appeal under Order XXII, rules 3 and 4, C. P. C., the test is whether in the event of an appeal being accepted in favour of the remaining appellants or against the remaining respondents, there would or would not be two contradictory decrees in the same litigation with respect to the same subject‑matter. It is an elementary principle of administration of justice that a Court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees, the Court must dismiss the appeal as a whole. Where the interest of the defendants in the suit or those of the plaintiffs are joint and indivisible, then necessarily, if the appeal is accepted, two incon sistent decrees in the same case with respect to the same subject matter are likely to come into existence. It is for this reason that in such cases the appeal must abate as a whole.
Where a decree was passed jointly in appeal in favour of 13 persons as owners against 26, and the latter took an appeal to the High Court, where, pending hearing, one appellant and one respondent died, whose legal representatives were not brought on record in time ;
Held, that the appeal had abated in toto.
If the decree was allowed to stand in favour of the deceased respondent but set aside in favour of the remaining plaintiff respondents, or if it was allowed to stand as against the deceased appellant defendant and set aside as against the remaining appellants, then two inconsistent decrees with regard to the same subject‑matter would come into being which would be completely against the well‑established principles of administration of justice.
[Case‑taw examined]
O. XLI, rr. 4 & 33 read with O. XXII, rr. 3 & 4‑O. XLI, rr. 4 & 33 do not nullify provisions of O. XXII, rr. 3 & 4‑Necessary parties must be before Court before rr. 4 & 33 of O. XLI are applied.
Held, that the provisions of Order XLI, rules 4 and 33 are enabling provisions. Rule 4 only confers a privilege on one of the plaintiffs or defendants to appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defend ants but it certainly does not mean that the persons who are necessary parties to the appeal are exempted from being made parties to the appeal. Similarly, rule 33 deals with the powers of the Court, but it does not mean that the Court can exercise those powers even in favour of those persons or against them when they are not made parties to the appeal. It cannot be denied that in appeal all those persons will be necessary parties in whose favour or against whom a decree has been passed. None of them can be dropped out in appeal by the appellant, nor does Order XLI, rules 4 and 33 confer any power on the appellate Court to drop any one of them. In order to exercise the powers contained in these rules, all persons affected by the order must be before the Court. It will be totally wrong to hold that an appellate Court can proceed to hear the case if all the necessary parties are not before it. Where any one of the appellants or the respondents dies, and his legal representatives are not brought on the record, then all persons interested in the result of the appeal are not before the Court, and so the appellate Court cannot proceed to exercise powers vested in it by Order XLI, rules 4 and 33. Order XLI, rules 4 and 33 do not nullify the provisions , of Order XXII, rules 3 and 4 and will not indirectly prevent an appeal from abatement if otherwise it stands abated.
Mian Inayat Ullah for Appellants.
Sheikh Muhammad Shafi for Respondents.
Nur Husain son of Fateh Muhammad and twelve others instituted a suit against Allah Dad and twenty‑five others for possession of 20 Kanals 4 Marlas of land bearing Khata No. 253/673, Khasra Nos. 38, 202/1 and 516 situated in Dina Thikrian village, Tehsil Jhelum, on the ground that they were the owners of this land and that one Mst. Bholi was in possession thereof as the widow of Ismail who was its occupancy tenant and on whose death the occupancy tenancy became completely extinct because Ismail left no reversioners. It was further alleged in the plaint that the defendants, who were in possession of the land, were not the reversioners of Ismail under section 59 (1) (d) of the Punjab Tenancy Act. The suit was resisted by Allah Dad, Fazal Dad and Gulab defend ants Nos. 1 to 3. Ex parte proceedings were taken as against the remaining defendants. Mr. Bashir Ahmad, Senior Civil Judge, Jhelum, dismissed the, suit leaving the parties to bear their own costs by his order dated the 24th of March, 1954. On appeal, however, the Additional District Judge, Jhelum, reversed the trial Court's order and decreed the plaintiffs' suit with costs throughout. Allah Dad and his sixteen co‑defendants have come up on second appeal to this Court making all the plaintiffs as well as the remaining defendants as respondents in the case. During the pendency of this appeal, Allah Dad from the appellants' side died on the 21st of June, 1959, and Nur Husain from the respondents' side some two and a half years ago. No application for bringing their legal representatives on the record was made within the time allowed by law with the result that Allah Dad's appeal abated under rule 3 of Order XXII and the appeal against Nur Husain abated under rule (4 ) of the same order because the right to sue did not survive in case of Allah Dad to the surviving appellants and in case of Nur Husain to the surviving respondents, It is also admitted that no application for setting aside the abatement was made in the case of both the deceased persons under Order XXII, rule 9 of the Code of Civil Procedure. It is, however, argued by the learned counsel for the appellants that the appeal does not abate even with respect to the dead persons because the decree appealed from proceeds on grounds common to all the appellants and all the respondents and it could, therefore, be prosecuted by one plaintiff or one defendant, and if the appellate Court is convinced, it can reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be, under Order XLI, rule 4 of the Code of Civil Procedure. In support of this contention, the learned counsel for the appellants has cited several autho rities.
2. Chandarsang v. Khimabhai (I L R 22 Bom. 718). This appeal arose out of a suit filed by nine plaintiffs against the five defendants for the recovery of possession of certain land alleging that they were the owners of the eastern portion of Survey Nos. 10, 11 and 12, and that the defendants Nos. 1 to 4 were the owners of the western portion of the same survey numbers The defendant No. 5 was alleged to be a tenant of the first four defendants. The plaintiffs' case was that the defendants took unlawful possession of 3/4ths of a bigha of their land out of Survey Nos. 11 and 12 and of 1/4th of a bigha of their land out of Survey No. 10. The Subordinate Judge held that the land in dispute belonged to the plaintiffs and that the defendants had removed the boundary marks and taken possession of the plaintiffs' land and he accordingly passed a decree in favour of the plaintiffs. Against this decree, the defendants appealed. Before, however, the appeal could be heard, one of the appellants died and an application to the District Judge to have the name of the legal representative of this appellant was rejected as time‑barred. One of the plaintiffs‑respondents also died before the hearing of the appeal and an application to have the name of his heir entered as respondent was also rejected as time‑barred. When the appeal came up for hearing, it was dismissed by the Assistant Judge on the ground that the land being held in common, the appeal was defective for want of parties. On second appeal, the Bombay High Court held that any plaintiff or defendant had a right to appeal without the concurrence of any one of the other parties. Similarly, the decree having been passed against the defendants, it was open to any one of them to appeal against it, and if the ground of appeal was common to all the defendants, it was open to the lower appellate Court to deal with the appeal under section 544 of the Civil Procedure Code (now Order XLI, rule 4). The mere fact of the death of one of the appellants cannot affect the right of the other appellants to proceed with the appeal if they choose to do so. It was thus held that as regards the appellants, the proper course for the lower appellate Court was to order that the appeal had abated so far as the dead appellant was concerned and to have proceeded with the hearing of the appeal so far as the remaining appellants were concerned. So far as the death of the respondent was concerned, it was held that the lower appellate Court should have either declared that the appeal had abated as against him and proceeded against the rest of the respondents or else to have directed that his legal representatives should be placed upon the record. This case was followed in Chintaman v. Gangabai (I L R 27 Bom. 284). This was a suit for partition in which the lower Court had passed a decree for the plaintiffs. Two of the defendants, who had denied the plaintiffs' right and claimed the property as their own, filed a joint appeal. Pending the appeal one of them died, and her legal representatives were not brought on the record. It was held that the two defendants had appealed on grounds common to them both and the lower appellate Court bad power to hear the appeal and to deal with the whole suit under section 544 of the Civil Procedure Code.
3. Ram Sewak v. Lambar Pande (I L R 25 All, 27). In this case the suit was brought by respondents for the partition of certain immovable property which belonged jointly to the parties. The Court of first instance decreed the claim and in doing so admit tedly proceeded upon a ground common to all the defendants. From this decree only six of the defendants, namely, those who were described in the plaint as defendants first‑party, appealed. During the pendency of the appeal one of them died and there upon his widow on behalf of her minor children applied that they should be made parties to the appeal as his legal representa tives. This application was rejected as barred by time. The lower Court held that as regards the dead appellant the appeal had abated. It also held the appeal of the other appellants to have abated on the ground that where a joint decree is the subject of an appeal on the part of unsuccessful defendants, the death of one of the appellants causes the appeal of the others to abate. On second appeal to the High Court this order of the trial Court was set aside and it was held that upon the abatement of the appeal of one appellant, the appeal of the other appellants before the Court did not abate. In arriving at this conclusion they followed Chandersang v. Khimabhai. They did not follow their own Courts' case Kamlapat v. Baldeo (I L R 22 All. 222) in which case a suit had been instituted against two joint decree holders for a declaration that certain property which had been attached by them belonged to the plaintiffs and was not liable to be taken in execution of the decree. The suit was dismissed by the Court of first instance, but decreed by the lower appellate Court. The decree‑holders preferred a second appeal to the Allahabad High Court, but during the pendency of the appeal one of them died, and no steps were taken to bring his legal representatives on the record. It was held by the Single Judge who heard the case that the appeal had abated in solo. Their Lordships of the Allahabad High Court said that the Single Judge had failed to give effect to the provisions of section 544 of the Code of Civil Procedure. They further held that the Court below having proceeded against both the defendants upon a ground common to them, any one of them under that section could have appealed and, therefore, the appellate Court would have been competent to make a decree which would have enured to the benefit of both the defendants.
4. Med Singh v. Kabir‑un‑Nisa (Punjab Chief Court). In this case the plaintiff who was recorded in the revenue papers as an occupancy tenant of the land in dispute had brought the suit against the recorded proprietors for a declaration that she was the owner of the land and that the entry in the revenue record giving her the status of occupancy tenant was incorrect. The Court of first instance dismissed the suit, but it was decreed on appeal by the Divisional Judge. The defendants who were more than thirteen in number preferred a further appeal to the Chief Court and on behalf of the respondent an objection was raised that as the application to bring on the record the legal representatives of one of the appellants was made after the expiry of six months from the date of his death, the appeal had abated. It was held that if each of the surviving appellants could have appealed separately and asked this Court to interfere with the entire decree of the lower Court, it was difficult to see why the fact that he chose to join with others in filing one appeal should put him in worse position. The partial abatement, therefore, did not produce any prejudicial effect and the appeal could proceed as if Hira had not been an appellant from the very beginning. In arriving at this conclusion, the Chief Court followed Chandersang v. Khimabhai, Chintaman v. Gangabal and Ram Sewak v. Lambar Pande.
3. Somasundaram Chettiar v. Vaithilinga Mudaliar (I L R 40 Mad. 846). Where some of the appellants, who were defendants, died and their legal representatives were not brought on the record in the appeal, it was held that it was competent to the Court under Order XLI, rule 4 to set aside the decree as regards the whole of the plaintiff's claim and not merely in respect of the interest of those appellants only whose appeal had not abated.
6. Piyare Lal v. Chura Mani (46 I C 50) (Punjab Chief Court). In this case during the pendency of an appeal one of the appellants died and no application was made to bring his legal representatives on the record till after the period of limitation had expired. It was contended that the appeal had abated in toto. It was held that the decree of the trial Court having been passed on a ground common to all the defendants the case was covered by Order XLI, rule 4 of the Code of Civil Procedure and the appeal could proceed.
7. Maung Byaung v. Mg. Shwe Baw (84 I C 170). In this case a suit for redemption by two joint mortgagors was dismissed. During the pendency of an appeal against the dismissal, one of the appellants died and his legal representatives were not brought on the record. It was held that .the surviving joint mortgagor was entitled to redeem the entire mortgage and could, therefore, continue the appeal and that in any case the surviving appellant could continue the appeal by virtue of the provision contained in Order XLI, rule 4 of the Code of Civil Procedure.
8. Hari Charan v. Kalipada Chakrawarty (119 I C 814). In this case three joint owners brought a suit for ejectment. The suit was dismissed and the plaintiffs appealed. During the pendency of the suit one of the plaintiffs died and his heirs ware not impleaded in time. The appeal was dismissed on the ground that it abated entirely. On second appeal it was held that though the surviving plaintiffs had no absolute right to go on with the appeal in the absence of the deceased plaintiff's heirs, they could go on if it seemed fit to the Court to allow them to go on to get a decree for joint possession. It was further held that the Court should, under the circumstance, have permitted the surviving plaintiffs to amend the plaint by seeking for joint possession only and allowed the appeal to proceed.
9. Suba Govind Rai v. Anar Koer (131 I C 877). In this case it was held that where one of several defendants having a common interest appeals making the others pro forma respondents and his legal representatives are not brought on the record within the prescribed time on his death, the pro forma respondents are not entitled to continue the appeal. Order XLI, rule 2, C. P. C. is not applicable to such a case. Order XLI, rule 4 merely enables one of several plaintiffs or defendants to appeal from a decree which proceeds on a ground common to them all. It does not provide that the plaintiffs or defendants who do not join with the appellant should be considered to be appellants for any purpose.
10. Satulal Bhattacharjee v. Asiraddi Sheikh (38 C W N 743). In this case where a suit for declaration of plaintiff's title to and recovery of khas possession of certain lands having been decreed, several defend ants preferred an appeal to the High Court and during the pendency of the appeal one of the appellants died and his heirs were not brought on the record within the time allowed by law and as a result the appeal so far as the deceased appellant was concerned abated. It was held that the appeal did not become incompetent and the Court could reverse the whole decree under the provisions of Order XLI, rule 4 of the Civil Procedure Code.
11. Baldoo v. Nano (155 1 C 602 (All.)). In this case the plaintiff's suit for recovery of possession of a plot of land and for demolition of certain constructions made by the defendants thereon was decreed by the trial Court. The defendants, eight in number, filed an appeal in the lower appellate Court during the pendency of which one of the defendants died and his legal representatives were not brought on the record. It was held on second appeal that any one of the defendants could have resisted the plaintiff's claim to possession and to demolition of the constructions made by the defendants. As any one of them could have impugned the entire decree and the lower appellate Court did set aside the entire decree at their instance and dismissed the plaintiff's suit in toto, no fault could be found with the procedure of that Court and its decree was not open to challenge.
12. Shripad Balwant v. Nagu Kushaba (A I R 1943 Bom. 301). In this case it was held that the death of one of the two joint owners during the pendency of an appeal does not prevent the appeal being prosecuted by the others. In fact there is no rule that all joint owners must be parties to appeals.
13. Halima Khatun v. Sashi Kumar (A I R 1947 Cal. 453). In this case it was held that where the heirs of a deceased sold defendant appeal against a decree passed against them and some of them die during the pendency of the appeal, the surviving appellants are entitled to prosecute the appeal without bringing on record the heirs of the deceased appellants.
14. Misri Lal v. Surji (AIR1950PC28=PLD1949PC250). In this case at the time when the appeal to the High Court was lodged respondent 1 was Sand Nayak, but he died before the hearing of the appeal and his heirs, who seem to have been his grandsons, were brought on record. The appellant before their Lordships was the eldest of such heirs. Very probably he was the karta of a joint family. Their Lordships held that all the heirs had exactly the same interest and one of them can appeal under O. XLI, rule 4 of the Civil Procedure Code.
15. Abdul Rahman v. Girjesh Bahadur (A I R 1938 All. 235). Where the suit has proceeded on a ground common to all the plaintiffs, and some only of the plaintiffs have appealed and have impleaded the non‑appealing plaintiffs and the pro forma defendants having the same interest as the plaintiff as respondents, and some of the respondents die during the pendency of the appeal, the case is governed by rule 4 and not rule 3 of Order XLI and if on the death of such respondents, the right to appeal survives against the remaining respondents, i.e., against those respondents against whom the relief is claimed and no relief is claimed against the deceased respondents, the appeal does not abate and become incompetent on account of the fact that the heirs of the deceased respondents are not brought on record. So also where the other respondents who have died were necessary parties to the suit, the fact of their heirs not having been brought on the record cannot render the appeal incompetent.
16. Sheo Govind v. Zahur Muhammad (191 1 C 234). It was held that though rules 4 and 33 of Order XLI and rule 3 of Order XXII, of the Code of Civil Procedure are independent yet there is no inconsistency or conflict between them. The provisions of rule 4 cannot be brought into operation unless the first essential condition under that rule is satisfied, namely, that the decree appealed from proceeds on any ground common to all the plaintiff's or all the defendants. It would be misreading Order XLI, rule 4 of the Code and nullifying the effect which the law intended in enacting that rule if it is held not to apply to a case under Order XXII, rule 3 (2). An appeal was filed by all the plaintiffs in a suit by several co‑sharers interested in a common cause. During the pendency of the appeal one of them died. It was held that the remaining appellants could continue the appeal and the appellate Court could pass any decree as the case required even though no legal representative of the deceased appellant was brought on the record.
17. Authorities taking the contrary view are as under :‑
Niamuddin Biswas v. Maniruddin Lashkar (107 I C 726). In this case, the plaintiffs, who were tenants of the holding, brought a suit under section 106 of the Bengal Tenancy Act on the allegation that the rent of the holding was Rs. 7 and prayed that the record might be corrected accordingly. The Assistant Settlement Officer held that the rent was Rs. 10 as entered in the Record of Rights and dismissed the plaintiffs' suit. The plaintiffs appealed to the Special Judge who was of the opinion that the rent was Rs. 7 and he, therefore, decreed the appeal. The landlord defendants who were four in number appealed to the High Court. Before the hearing of the appeal, one of the appellants died. His heirs were not brought on the record and consequently the appeal so far as he was concerned had abated. It was contended by the respondents that as the appeal had abated with regard to one of the appellants, the whole appeal must fail because right to appeal does not survive to other three appellants alone. It was argued that if they are allowed to appeal and are successful, the result will be that so far as some of the landlords are concerned, the rate of rent will be Rs. 7 and as regards others Rs. 10. In reply it was argued that the three appellants who were still on the record could appeal and as regards the appellant in whose case the appeal had abated, the Court could apply the principle of Order XLI, rule 4, C. P. C. It was contended that the three appellants on the record had appealed from the whole decree on grounds which were common also to the fourth appellant and, therefore, the Court could not reverse or vary the decree in his favour. Their Lordships of the Calcutta High Court concluded that the Court cannot vary or reverse a decree in favour of a person who was dead and to longer in existence. According to their Lordships, Order XLI, rule 4 can have no application in such a case. A dead person is no longer a party to a suit in any capacity. No doubt the death of an appellant does not cause the appeal to abate. if the right to appeal survives, but this does not mean that any decree can be passed in favour of the dead person. It merely provides that the heirs and representatives may carry on the litigation if they so desire and have themselves duly been made party. It was further held that to allow an appellant whose appeal had abated to gain the advantage of Order XLI, rule 4 would result in the anomaly that so far as that appellant was concerned there would be two decrees in the same suit in exist ence at the same time; one in his favour and one against him. This was the conclusion to which Order XLI, r. 4 cannot apply. Their Lordships refused to follow Chintaman v. Gangabai and Somasundaram Chettiar v. Vaithilinga Mudaliar.
18. Ghulam Muhammad v. Sherdilkhan (A I R 1942 Sind 157). The provisions of Order XXII, rule 3 are not qualified by the provisions of Order XLI, rule 4 which does not apply to a case where all the plaintiffs and defendants are not alive. It does not state that the decree may be reversed or varied in favour of all the plaintiffs or defendants, or their personal representatives or representatives‑in -interest. The reversal of variation can be made only in favour of plaintiffs or defendants and that would exclude personal represen tatives. Apart from the precise wording of Order XLI, rule 4, the fundamental objection to the application of this rule to a case where the appellant is dead and his legal representatives has not been brought upon the record is that a decree cannot be passed against a person who is dead or has no legal existence. Con sequently, the case of abatement of an appeal on ground of death of one of the appellants is governed by Order XXII, rules 3 and 11 and not Order XLI, rule 4. In arriving at this conclusion, their Lordships followed Ramphal Sahu v. Stadeo Jha (A I R 1940 Pat. 346). Where one of the plaintiffs or appellants dies during the pendency of a suit or appeal and his legal representatives are not brought on the record within time, the question whether the suit or appeal abates as a whole must be decided on the simple ground of whether it is necessary for a proper decision of the subject‑matter in dispute that all parties must be brought on record and it makes no difference whether a Court is dealing with a suit or an appeal. The presence of all necessary parties is essential for the proper decision of the dispute in either case. The parties to a suit for possession and partition of the suit land were all Mahomedans except plaintiff 6 who was a Hindu and claimed to be the pur chaser of a half share of the plaintiffs in the suit land. Of the plaintiffs he alone took interest in the suit, none of the other plaintiffs appearing in Court at any time. The share of none of the plaintiffs except plaintiff 6 was specified. The plaintiffs claimed jointly to have joint shares in 10 annas 8 pies share of the suit land. The plaintiffs claimed inter alia to avoid a sale that two of them plaintiff 1 and his brother made to one M whose ultimate successors‑in‑title were the defendants in the suit. The suit was dismissed by the trial Court, and the decision of the trial Court was confirmed on appeal. During the pendency of the second appeal plaintiff 2 died and his legal representatives not having been brought on record, the suit abated as regards him. It was held that the case was governed by Order XXII, rules 3 and 11 and not by Order XLI, rule 4, and the cause of action of all the plaintiffs being joint and the same all the plaintiffs were necessary parties to the suit and also to the appeal. Consequently, as the appeal had abated in respect of one of several appellants, the right to appeal did not survive to the remaining appellants alone and, therefore, the whole appeal became incompetent. Their Lordships did not follow Chandarsang v. Khimabhai, Chintaman v. Gangabai and Rum Sewak v. Lambar Pande. About Bombay cases, their Lordships were of the opinion that they proceeded on general lines and did not appear to have considered the detailed application of this decision, for instance, what happens to that part of the decree which relates to the deceased appellant.
19. In Ramphal Sabu v. Satdeo Jha (A I R 1940 Pat. 346). It was held : By reason of the provisions of rules 3 and 11 of Order XXII, the appeal in so far as it concerns the deceased appellant abates and as the abatement, if not set aside, has the force of a decree, the matter becomes final as against the deceased appellant. There is nothing in Order XLI, rule 4 which permits the Court to disturb that finality of the decree as against the deceased appellant. The word is "and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be" in Order XLI, rule 4 suggest that all the plaintiffs or defendants are alive at the time when the decree of the appellate Court is passed. The wording is not appropriate to a case where one of the plaintiffs or defendant‑appellants has died during the pendency of the appeal. Hence, the appellate Court has no power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under Order XLI, rule 4, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and the application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants.
20. Saru Khan v. Jan Muhammad (A I R 1928 Lah. 43) : Rule 4 authorizes one of the plaintiffs to an action in which other co‑plaintiffs are also interested, to appeal for the benefit of the latter, only if they are made parties to the appeal. Where the deceased plaintiff was a joint occupancy tenant with his co‑plaintiffs, and his rights in the tenancy lapsed to his co‑tenants who were already on the record, it was held that It was necessary to implead the heirs of the deceased plaintiff.
21. F. Z. Husain Shah v. Ghulam Rasul (110 I C 250) : It was held that one of the several plaintiffs can appeal for the benefit of all only if the latter are made parties.
22. Amin Chand v. Baldeo Sahai‑Ganga Sahai (151 I C 784) : Order XLI, rule 4 of the Code of Civil Procedure confers a privilege on a single appellant who takes on himself the whole burden and risk of an appeal. It does not enunciate a general principle that controls other rules in the Code. The mandatory words of Order XXI1, rule 3 (2) have not been qualified in this rule. Order XLI, rule 4 does not discuss abatement but is itself subject to the general rules on that subject. Courts are not justified in applying its pro visions so as to negative to a very (sic) extent the provisions of the very specific rule which deals expressly with abatement. A suit was instituted by the plaintiffs to compel the defendants to render an account of certain transactions of purchase and sale which had taken place between the parties and for a decree for such sum as might be found due on tile taking of the account. Defendants appealed and pending the hearing of the appeal, one of the defendant‑appellants died. It was argued that the application was unnecessary and that the appeals had not abated and, in the second place, that if the application is necessary, it should be treated as if it asked for an extension of time. It was held that the pro visions of Order XXII, rule 3 applied and that this rule should not be read in the light of Order XLI, rule 4 and that the appeal had abated.
23. 1n order to appreciate the point involved in this case it is necessary to carefully scrutinize the provisions of Order XLI, rules 3 and 4 and Order XLI, rules 4 and 33 of the Code of Civil Procedure separately. Order XXII, rule 3 provides that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff, or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Where within the time limited by law no application is made, then the suit shall abate so far as the deceased plaintiff is concerned. Order XXII, rule 4 deals with the death of one of two or more defendants and lays down that where within the time limited by law no application is made for bringing the legal representative of the deceased defen dant on the record, then the suit shall abate as against the deceased defendant. The word "abate" is nowhere defined in the Code of Civil Procedure. The meaning given to it in Chamber's Twentieth Century Dictionary is "to demolish" or "to put an end to". Substituting these words then in rules 3 and 4 of Order XXII of the Code of Civil Procedure it would mean that in the case of the death of the plaintiff his appeal is demolished or put an end to, and in the case of the death of the defendant the appeal against him is demolished or put an end to. In other words, on their death the appeal of one and the appeal against the other stands as being dismissed. The result of the dismissal of the appeal or putting an end to an appeal is that the decree appealed against stands intact. The deceased plaintiff is bound by it and the deceased defendant stands benefited by it. It will be noticed that the word used in rules 3 and 4, is "shall" i.e., the decree of the trial Court stands intact so far as the deceased plaintiff and the deceased defendant whose legal representatives are not brought on the record are concerned. The next question which has to be considered is as to whether by reason of the fact that the appeal has abated so far a one appellant and one respondent are con cerned, it abates as a whole or not. The test is whether in the event of an appeal being accepted in favour of the remaining appellants or against the remaining respondents, there would of would not be two contradictory decrees in the same litigation with respect to the same subject‑matter. 1t is an elementary principle of administration of justice that a Court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees the Court must dismiss the appeal as a whole. Where the interest of the defendants in the suit or those of the plaintiffs are joint and indivisible, then necessarily, if the appeal is accepted, two inconsistent decrees in the same case with respect to the same subject‑matter are likely to come into existence. It is for this reason that in such cases it had been held that the appeal must abate as a whole. In the instant case the decree has been passed jointly in favour of thirteen plaintiffs against all the defendants. If the decree is allowed to stand in favour of Nur Husain but set aside in favour of the remaining plaintiff‑respondents, or it is allowed to stand as against Allah Dad and set aside as against the remaining appellants, then two inconsistent decrees with regard to the same subject‑matter will come into being which would be completely against the well established principles of administration of justice. On the death of Nur Husain and Allah Dad, therefore, the whole appeal has abated.
24. What has to be considered is that whether this effect can be said to have been nullified by Order XLI, rules 4 and 33 of the Code of Civil Procedure. The first rule runs as under :‑
"Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs, or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate , Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
Order XLI, rule 33 lays down that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in. favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Both these provisions of law are enabling provisions. Rule 4 only confers a privilege on one of the plaintiffs or defendants to appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defendants but it certainly does not mean that the persons who are necessary party to the appeal are exempted from being made a party to the appeal. Similarly, rule 33 deals with the powers of the Court, but it does not mean that the Court can exercise those powers even in favour of those persons or against them when. they are not made party to the appeal. It cannot be denied that in appeal all those persons will be the necessary party in whose favour or against whom a decree has been passed. None of them can be dropped out in appeal by the appellant, nor does Order XLI, rules 4 and 33 confer any power on the appellate Court to drop any one of them out. In order to exercise the powers con tained in these rules, all persons affected by the order must be before the Court. It will be totally wrong to hold that an appellate Court can proceed to hear the case if all the necessary parties are no before it, where any one of the appellants or the respondents dies, and his legal representatives are not brought on the record, then all persons interested in the result of the appeal are not before the Court, and so the appellate Court cannot proceed to exercise powers vested in it by Order XLI, rules 4 and 33. Considering all the pros and cons of the case I have arrived at the conclusion that Order XLI, rules 4 and 33 do not nullify the provisions of Order XXII, rules 3 and 4 and will not indirectly prevent the appeal from abatement if otherwise it stands abated. The pre liminary objection, therefore, in this appeal must prevail. The appeal is dismissed, but I make no order as to costs.
A.H. Appeal dismissed.
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