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1978 Supreme(Kar) 236
Karnataka High Court
KANJI MOORARJI - Appellant
Versus
SRIPATI VENKATARAMANA HEGDE - Respondent
Decided On : 10-25-78
The main legal point established in the judgment is the interpretation of S. 100 CPC and the concept of 'decision in appeal' in the context of abatement and dismissal of an appeal.
Headnote:
abatement - Civil Revision Petition - S. 100 of CPC - The court discussed the interpretation of S. 100 CPC and whether the dismissal of an appeal as having abated amounts to a 'decree passed in appeal'. The court referred to conflicting judicial opinions and analyzed the distinction between S. 96, S. 100, and S. 109 CPC. The court also considered the concept of 'decision in appeal' and its implications, citing relevant case law.
Fact of the Case:
The civil revision petition concerned the dismissal of an appeal due to the failure to bring the legal representatives of a deceased respondent on record, leading to abatement. The original defendants challenged the correctness of the appellate court's order and the consequent dismissal of the appeal.
Finding of the Court:
The court found that the dismissal of the appeal due to abatement did not amount to a 'decision in appeal' and therefore, the revision petition was maintainable. The court also held that the order of the appellate court dismissing the appeal was erroneous and directed the appeal to be readmitted and disposed of in accordance with the law.
Issues: The issues included the maintainability of the revision petition, the interpretation of S. 100 CPC, and the correctness of the appellate court's order regarding abatement and dismissal of the appeal.
Ratio Decidendi: The court's decision was based on the interpretation of S. 100 CPC, the concept of 'decision in appeal', and the implications of abatement on the appeal process. The court also considered the application of Order 41, rule 4 CPC in the context of the case.
Final Decision: The civil revision petition was allowed, the orders of the appellate court were set aside, and the appellate court was directed to readmit the appeal and dispose of the same in accordance with the law. Each party was left to bear their own costs in the petition.
( 1 ) THE principal question that arises in this civil revision petition is whether the dismissal of an appeal as having abated consequent upon the legal representatives of one of the respondents therein not having been brought on record amounts to a "decree passed in appeal" within the meaning of S. ICO of CPC admitting of second appeal to this Court and whether a revision petition under S. 115 of the Code is not maintainable,. This matter has come up before us upon a reference by Srinivasa Iyengar, J. , as in his Lordship's view there is conflict of judicial opinion between two pronoucements of this Court in Vishnumoorthi Bhagwatha v. Rudra Shedthi ( (1973) 2 Kar. L. J. 395.) and Mangala Bai v. Sayyad Fakir ( (1975) 2 Kar. L. J, 140. ).
( 2 ) FACTS necessary for the disposal of this civil revision petition, briefly stated, are: sripathi Venkataramana Hegde, first respondent in this civil revision petition, instituted O. S. 13 of 1970 on the file of the Civil Judge, North kanara. against a firm of partners carrying on business under the name and style "m/s. Kanji Moorarji" for recovery of a sum of Rs. 12,324-73 with costs, current and future interest. The said firm is the first petitioner herein. Petitioners 2 to 8 herein were defendants 7, 3, 4, 5, 6, 8 and 9 respectively in the suit. These defendants, along with one Vallabhadas Vasanji, defendant-2 in the suit were impleaded in the suit on the allegation that they were partners of the first-respondent firm. The suit ended in a decree. Against the said decree, only two defendants viz. , Defendants 1 and 7 preferred an appeal before the District Court, North Kanara, in R. A. No. 256 of 1973. Plaintiff was respondent-1 in the said appeal, respondents 2 to 8 therein being the other defendants who did not join in the filing of the appeal and arrayed as respondents. During the pendency of R. A. 256 of 1973, Vallabhadas Vasanji, who was defendant-2 in the suit and respodent-2 in that appeal, died. Thereafter Sripati Venkaitairamana Hegde, plaintiff who- was respondant-1 in the; appeal, made an application, I. A. II, in the appellate court urging that the legal representatives of the said Valla- bhadas Vasanji, respondent-2 in the appeal not haying been brought on, record ,the appeal against him sjtood abated; that in the, circumstances, the court could not a (lso proceed with the appeal as against the other respondent also as such a course might result in a conflict of decisions, and that therefore the entire appeal as against all the respondents should be dismissed. The appellant court accepted this contention and allowed I. A. II by its order dated 18-9-1974; in consequence, the appeal came to be dismissed. In this civil revision petition all the original defendants-except, of course, defendant no. 2 who died during the pendency of the appeal-challenge the correctness of the order of the appellate court on I. A. II and the consequent dismissal of the appeal.
( 3 ) WE have heard Sri. T. S. Ramachandra, learned counsel for the petitioners and Sri K. I. Bhatta, learned, counsel for the respondent. On the contentions urged before us in this revision petition, the two questions that fall for determination, are:- (a) Whether, as contended by the respondent, this revision petition is not maintainable inasmuch as, the dismissal of R. A. 256/73 on the ground that the said appeal had abated is a "decision in appeal' within the meaning of S. 100 CPC admitting of a second appeal; and (b) If the revision petition is maintainable, whether the, order ur der revision calls for interference and requires to be set-aside in excucise of the powers of this Court Under S. 115 CPC.
( 4 ) POINT (a): learned counsel on both sides called our attention to a number of decided cases of the various High Courts in support of their respective cotensions. Learned counsiel pointed out that there is an apparent conflict of opinion between the view expressed by this Court in Vishnumoortinumoorhi
