Judgement

Appeal (No. 67 of 1927) from a decree of the High Court (July 11, 1924) varying an order of the Subordinate Judge of Bulandshahr.

The appeal arose out of a suit for pre-emption in which four plaintiffs obtained a joint decree and possession of the pre-empted property. On appeal the High Court had set aside the decree of the Court of first instance. In the execution proceedings for the restoration of the property that followed, it was discovered that the appeal had been heard and decided in the absence of the legal representatives of one of the plaintiffs who had died during the pendency of the appeal.

The facts of the case appear from the judgment of the Judicial Committee.

The High Court (in a judgment reported at I. L. R. 47 A. 100) held that the decree on appeal had abated wholly, not merely as against the present respondents, the representatives of the deceased plaintiff. The judgment was subsequently disapproved by the Pull Bench in Mahadeo Singh v. Talib Ali. (( 1928) I. L. R. 50 A. 792.)

1928. June 25. De Gruyther K.C. and Dube for the appellant. Hyam for the respondents.

Dec. 6. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. In this case Puran Singh, Lekhraj Singh, Amar Singh and Pirthi Singh, who were co-sharers in the village of Bighepur, filed a suit for pre-emption of certain land which the defendant Muhammad Wajid Khan, who is the present appellant, had purchased in the village. The sole question in the case was whether the custom of preemption obtained in the village, and the Additional Subordinate Judge of Aligarh having found this issue in favour of the plaintiffs gave them a decree for possession on their depositing the pre-emption money in Court. They duly deposited the money and obtained possession in execution of the decree.

It was suggested for the first time before the Board that the fourth plaintiff Pirthi Singh, who actually deposited the money in Court and obtained possession, was the only plaintiff who executed the decree, and that the right of the other decree-holders and their legal representatives to execute had become barred by limitation. In their Lordships opinion there is no foundation for this contention. The application for execution of the decree, which was signed by all the four decree-holders, stated that the money had been deposited by them and prayed that possession might be given to them. The execution proceeded upon this basis, and in reply to objections subsequently raised by the defendant Pirthi Singh himself stated that the decree-holders had obtained possession. It is clear therefore that the deposit was made and possession obtained on behalf of all the decree-holders.

The defendant appealed to the High Court at Allahabad, making all the plaintiffs parties to the appeal. When the appeal came on for hearing Amar Singh, the third plaintiff, had been dead for about a year and his legal representatives had not been brought in the record. These facts were not brought to the notice of the Court, and the appeal was allowed to proceed on the footing that he was before the Court, and the appellate decree recites that he had been duly represented at the hearing, whereas in fact he had died and the authority to represent him had determined. Their Lordships are not in a position to say how this regrettable omission came about, and will only observe generally that it cannot be too clearly understood that a practitioner who appears for several respondents, one of whom dies before the hearing of the appeal, owes a clear duty to the Court to bring to its notice if he is aware of it the fact that one of the respondents for whom he has entered appearance is dead and no longer represented by him. Had the Court been apprised of the fact, as it should have been, the questions now before the Board could have been decided at the hearing of the appeal and this subsequent litigation would have been unnecessary.

As it was, the surviving respondents allowed the appeal to be heard