The death of one of the joint decree-holders abates the appeal against all the respondents and the appeal against the surviving respondent becomes incompetent.

Judgment

RAGHUBAR DAYAL, J. : Bilas Rai Bohra, son of Bansidhar Bohra and Shri Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs. 13,448 from the defendant for compensation on account of loss and damage suffered by the plaintiffs owing to non-delivery of 11 bales of cloth which had been consigned on October 20, 1948 by M/s. Ram Kishun Das Sagarmal of Bombay to the plaintiffs under the description of M/s. Banshidhar Ganpat Rai. It was alleged in para 1 of the plaint that the plaintiffs carried on business in cloth and other articles in the name and style of M/s. Bansidhar Ganpat Rai which was their joint family trading firm governed by the Mitakshara School of Hindu Law of which joint family the plaintiffs were the kartas and representatives and that they sued as such. This statement in para 1 of the plaint was not admitted in the written statement. The trial Court decreed the suit on August 29, 1951. The decree, inter alia, said :

"It is ordered that the suit be decreed with costs (and?) defendants do pay to the plaintiffs the sum of Rs. 13,448 with interest thereon...."

2. The Union of India appealed to the High Court of Patna and prayed for the setting aside of the decree and for the dismissal of the suit with costs. The plaintiffs-respondents were served with notice of the appeal. Subsequently Bilas Rai Bohra died on July 24, 1957. On September 5, 1958, the Union of India presented an application for substitution under O. 22, R. 4 read with O. 22, R. 11, C.P.C. for setting aside the abatement and condonation of delay. It was stated in the application that the applicant s advocate came to know of the death of Bilas Rai Bohra, plaintiff No. 1, on May 14, 1958 when the case was on the daily list with a note to the effect, that he promptly communicated the fact to the railway authorities but due to the mistake of the Attacher, proper steps for substitution could not be taken in time. It was further stated that after a good deal of enquiry and efforts for three days the date of the death of Bilas Rai Bohra and the names and addresses of his heirs and legal representatives could be ascertained. A prayer was made for substituting the heirs of Bilas Rai Bohra, they being his sons, a widow and a daughter. Their names were mentioned in the application.

3. This application was opposed on behalf of the heirs of Bilas Rai Bohra. It was mentioned therein that on September 27, 1957, an application for substitution of the heirs of Bilas Rai Bohra was made in another appeal in which the Union of India was a respondent and that, therefore, the Union of India and its Advocate were aware of the death of Bilas Rai Bohra and of the names of his heirs.

4. On December 1, 1958, the High Court dismissed the application for the setting aside of the abatement of the appeal against Bilas Rai Bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant, the Union of India, as its counsel had information about the death of Bilas Rai Bohra at least on May 16, 1958. The High Court did not feel satisfied on the facts of the case that any ground had been made out for setting aside the abatement of the appeal.

5. It may be mentioned here that it was not urged in the High Court that there had been no abatement of the appeal against the heirs and legal representatives of Bilas Rai Bohra. It could not have been urged when the Union of India itself had applied for the setting aside of the abatement and the substitution of the heirs and legal representatives of Bilas Rat Bohra.

6. The appeal of the Union of India against the surviving respondent, viz., Shri Rani Bohra, came up for hearing on February 11, 1959, when a preliminary objection was raised on behalf of the respondent to the effect that the appeal had abated entirely as it had abated against the heirs of plaintiff-respondent No. 1. It was contended for the Union of India that the two plaintiffs, viz., Bilas Rai