The abatement of an appeal due to non-substitution of a deceased co-appellant leads to the entire appeal being dismissed if it involves a joint decree that may result in conflicting decisions.

JUDGMENT :

MANOJ MISRA, J.

1. Leave granted.

2. These appeals arise from Civil Suit No. 13 of 1983 (renumbered 16A of 1997), which was dismissed by the trial court and decreed by the first appellate court. On second appeal¹ [Second Appeal No. 446 of 2001] before the High Court² [The High Court of Madhya Pradesh at Gwalior] by the impugned order dated 21.02.2022, the appeal of the appellants herein was declared to have abated due to non-substitution of the legal representatives (for short LRs) of Ram Babu (i.e. appellant no. 2 in the second appeal) within time. By the second impugned order dated 04.08.2022, the High Court rejected the applications³ [MCC No. 697 and MCC No. 700 of 2022] preferred for condonation of delay in applying to set aside abatement and for substitution of the LRs of deceased Ram Babu.

FACTS:

3. The facts relevant for deciding the present appeal are as follows:

(i) Suit No. 13 of 1983 (renumbered as 16A of 1997) was instituted against Suresh Chandra (predecessor-in-interest of the appellants herein) and Ram Babu by the respondent seeking declaration, recovery of possession, mesne profits in respect of a house.

(ii) Plaintiff claimed exclusive title over the suit property through its ancestor Tej Singh and pleaded that the defendants were his tenant.

(iii) Defendants i.e. Suresh Chandra and Ram Babu, filed a joint written statement in the suit.

(iv) Suresh Chandra died during the suit proceeding, his LRs, namely, the appellants, also filed their written statements.

(v) In the written statement, while denying the alleged tenancy, the defendants claimed title over the suit property through their ancestor late Gokul Prasad who, according to them, had derived exclusive interest in the suit property through a partition with his brothers in the year 1947.

(vi) The trial court dismissed the suit against which an appeal was preferred by the plaintiff.

(vii) The first appellate court decreed the suit of the plaintiff against which the LRs of Suresh Chandra and Ram Babu filed the second appeal.

(viii) During the pendency of the second appeal, appellant no. 2 (Ram Babu) died on 19.08.2015. Information of his death was given to the Court on 04.04.2016. However, his LRs were not brought on record within time.

(ix) The High Court vide first impugned order dated 21.02.2022 declared the appeal to have abated.

(x) To set aside abatement and to substitute the LRs of Ram Babu two set of applications were filed along with delay condonation applications. One set, namely, MCC No. 700 of 2022 was filed by the appellants (i.e. LRs of Suresh Chandra, who were already on record) and the other set, namely, MCC No. 697 of 2022 was filed by LRs of Ram Babu. Both were rejected by second impugned order dated 04.08.2022.

4. Aggrieved by the aforesaid orders, the appellants are before us.

5. We have heard Shri Jayant Mehta, learned Senior Counsel for the appellants; Shri N.K. Mody, learned Senior Counsel for the contesting respondent and have perused the record.

APPELLANTS’ SUBMISSIONS

6. The learned counsel for the appellants submitted that, on non-substitution of legal heirs of a dead co-appellant, to determine whether the appeal abated partially, or wholly, what needs to be examined first is whether the surviving appellant has an independent right to pursue the appeal. If yes, whether he could seek for reversal of the entire decree under appeal. If not, then whether the decree in favour of the surviving appellant