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PATNA HIGH COURT
C.P.Sinha and N.L.Untwalia JJ.
Ambika Prasad Singh
Versus
Thakur Prasad Singh
Appeal from Original Decree No. 17 of 1948 ;
Decided On : APRIL 08, 1958
CIVIL PROCEDURE - Appeal - Abatement - Effect - Whether abatement of appeal of one of the appellants has the force of a decree of the appellate Court disposing of the appeal so far as the deceased appellant is concerned - Whether appellate court has 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 41, Rule 4, Civil Procedure Code, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused.
Fact of the Case:
Ambika Prasad Singh, appellant No. 1, died in June 1956, during the pendency of this first appeal and on the 17th of September 1956 an application was filed by the surviving appellants for substitution of the three sons of the deceased in his place. The plaintiffs-respondents objected to their substitution on two grounds, firstly, that the application was out of time as, according to them, Ambika Prasad Singh died on the 17th of June 1956; secondly, on the ground that Ambika Prasad Singh died leaving behind not only the three sons sought to be substituted but also a widow and daughters. The stand taken on behalf of the appellants was that Ambika Prasad Singh died on the 18th June 1956, and, the ninetieth day being a holiday, this application filed on the ninety first day was in time. Their further case was that the widow had relinquished her entire interest in the disputed properties in favour of her three sons, and the learned counsel for the appellants could not state definitely on 3-1-57 when this matter was taken up as to whether Ambika Prasad Singh had left any daughter or not. In this view of the matter, this Court, by order dated 3-1-57, directed an enquiry to be made on the disputed questions, namely : "(1) what is the exact date of death of Ambika Prasad Singh ; (2) whether the said Ambika Prasad Singh left any other legal representatives apart from his three sons on "the date of his death ; and (3) whether the widow had relinquished her interest in favour of her sons." The enquiry was made by the Subordinate Judge, 3rd Court, at Patna, and he submitted his report to the effect (i) that Ambika Prasad Singh died at 3 p.m. on the 17th of June, 1956 and not at 2 a.m. on the 18th of June 1956 ; (ii) that Ambika Prasad Singh died leaving a widow and two daughters apart from the three sons ; and (iii) that the widow could not validly surrender her interest in favour of her sons without a registered document. In view of this adverse report against the appellants, an application was filed on 27-9-57 on their behalf Praying that the delay of two days in making the application for substitution might be condoned and the abatement might be set aside. The report as well as the application was put up before Ramaswami C. J., and Raj Kishore Prasad J., on 27-9-57 and, after having heard the learned counsel on behalf of the Icon-testing partes, their Lordships accepted all the findings of the learned Subordinate Judge and refused to condone the delay made in filing the application for substitution. The application for substitution filed on behalf of the appellants (which has been, by mistake, called an application by the sons of the deceased appellant in the order dated 27-9 57) was rejected and the fact was recorded that the first appeal had abated so far as appellant, Ambika Prasad Singh, was concerned. No opinion, however, was expressed as to what would be the effect of this order upon the fate of the appeal as a whole and that matter was left to be decided by the Bench which might ultimately hear the first appeal.
Finding of the Court:
The court held that the abatement of the appeal of one of the appellants does not have the force of a decree of the appellate Court disposing of the appeal so far as the deceased appellant is concerned. The court further held that the appellate court has the 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 41, Rule 4, Civil Procedure Code, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused.
Issues: 1. Whether the abatement of the appeal of one of the appellants has the force of a decree of the appellate Court disposing of the appeal so far as the deceased appellant is concerned? 2. Whether the appellate court has 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 41, Rule 4, Civil Procedure Code, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused?
Ratio Decidendi: 1. The abatement of the appeal of one of the appellants does not have the force of a decree of the appellate Court disposing of the appeal so far as the deceased appellant is concerned. 2. The appellate court has the 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 41, Rule 4, Civil Procedure Code, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused.
Final Decision: The appeal was dismissed as being incompetent because of the abatement of the appeal of the deceased appellant, Ambika Prasad Singh. No order was made as to costs.
Nandlal Untwalia, J.
1. It is unfortunate that this appeal has to fail on a preliminary point. The plaintiffs-respondents first party filed a suit for specific performance of contract of sale by the defendants first party (respondents second party) in favour of the plaintiffs. In this suit the defendants second party (defendants Nos. 2 to 8) were impleaded as the contract was sought to be enforced against them also on the plea that they were subsequent purchasers of the properties in question with notice of the contract in favour of the plaintiffs. The suit was decreed by the trial court and the defendants were directed to execute and register a deed of sale in favour of the plaintiffs on payment of Rs. 77,000 by the latter to the former. Defendant Nos. 2 to 8 filed on 71-48 the present First Appeal No. 17 of 1948. Thereafter two more first appeals were filed. First Appeal No. 37 of 1948 was filed by the defendant first party and First Appeal No. 72 of 1948 was filed by the plaintiffs against such portion of the decree which was against them. The hitter two first appeals have failed for non prosecution on one ground or the other; and we are now concerned with First Appeal No. 17 of 1948.
2. Ambika Prasad Singh, appellant No. 1, died in June 1956, during the pendency of this first appeal and on the 17th of September 1956 an application was filed by the surviving appellants for substitution of the three sons of the deceased in his place. The plaintiffs-respondents objected to their substitution on two grounds, firstly, that the application was out of time as, according to them, Ambika Prasad Singh died on the 17th of June 1956; secondly, on the ground that Ambika Prasad Singh died leaving behind not only the three sons sought to be substituted but also a widow and daughters. The stand taken on behalf of the appellants was that Ambika Prasad Singh died on the 18th June 1956, and, the ninetieth day being a holiday, this application filed on the ninety first day was in time. Their further case was that the widow had relinquished her entire interest in the disputed properties in favour of her three sons, and the learned counsel for the appellants could not state definitely on 3-1-57 when this matter was taken up as to whether Ambika Prasad Singh had left any daughter or not. In this view of the matter, this Court, by order dated 3-1-57, directed an enquiry to be made on the disputed questions, namely :
"(1) what is the exact date of death of Ambika Prasad Singh ; (2) whether the said Ambika Prasad Singh left any other legal representatives apart from his three sons on "the date of his death ; and (3) whether the widow had relinquished her interest in favour of her sons."
The enquiry was made by the Subordinate Judge, 3rd Court, at Patna, and he submitted his report to the effect (i) that Ambika Prasad Singh died at 3 p.m. on the 17th of June, 1956 and not at 2 a.m. on the 18th of June 1956 ; (ii) that Ambika Prasad Singh died leaving a widow and two daughters apart from the three sons ; and (iii) that the widow could not validly surrender her interest in favour of her sons without a registered document. In view of this adverse report against the appellants, an application was filed on 27-9-57 on their behalf Praying that the delay of two days in making the application for substitution might be condoned and the abatement might be set aside. The report as well as the application was put up before Ramaswami C. J., and Raj Kishore Prasad J., on 27-9-57 and, after having heard the learned counsel on behalf of the Icon-testing partes, their Lordships accepted all the findings of the learned Subordinate Judge and refused to condone the delay made in filing the application for substitution. The application for substitution filed on behalf of the appellants (which has been, by mistake, called an application by the sons of the deceased appellant in the order dated 27-9 57) was rejected and the fact was recorded that the first appeal h
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