Point of law: Decree in Suit – Abatement of Appeal - In cases where an appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased under Order XLI, Rule 14(3), it is provided that the appeal shall not be deemed to abate as against such party and the decree made on appeal shall be binding on the estate or the interest of such party

JUDGMENT :

Heard Mr. N. Dhar, learned counsel for the petitioner and Mr. M.H. Rajbarbhuiya, learned counsel for the respondent.

2. The review petitioner herein was the respondent in CRP 147/2017, and the respondent herein was the petitioner in the said revision petition.

3. The short fact which led to filing of CRP 147/2017 is that the sole respondent therein was the plaintiff No.1 in Title Suit No.33/2010. The plaintiff no.2 in the said suit was Merabjan Bibi. The revision petitioner was the sole defendant in the said suit. By judgment and decree dated 05.02.2013, the suit was dismissed by the learned Court of Munsiff No.1, Hailakandi. The aggrieved plaintiffs had jointly preferred an appeal, which was registered as Title Appeal No. 16/2014 before the Court of Civil Judge, Hailakandi. The revision petitioner was the sole respondent in the said appeal. The revision petitioner by filing petition no. 8358/43 under Order XXII Rule 3(2) CPC, had brought to the notice of the learned lower appellate Court that though the appellant no. 2 had died, as her legal representatives were not substituted, the appeal had abated as the rights of both the appellants including that of the legal representatives of the appellant No.2 were joint and indivisible and in-severable. By order dated 07.11.2016, the learned lower appellate Court was of the view that appeal was preferred by one of the appellant/plaintiff with regard to right, title and interest in respect of the schedule land described in T.S. No. 33/2010 and that since the nature of the suit was basically for their right and interest, it was held that the right to sue does not extinguish even on the death of one of the plaintiff. Consequently, the court did not find merit in petition no. 8358/03 and the said petition was rejected. Aggrieved by the said order, the revision petitioner had approached this Court by challenging the said order under Article 227 of the Constitution of India and this Court by order dated 16.09.2017, had allowed the said revision petition. Resultantly, the appeal before the lower appellate Court was held to have abated.

4. The only point urged by the learned counsel for the review petitioner is that the order dated 16.09.2017 passed by this Court in CRP 147/2017 was without taking into consideration the provisions of Order XXII Rule 2 and Order XXII Rule 3(2) of the Civil Procedure Code. Accordingly, it is submitted that the appeal being an extension of the suit, the legal position is that the learned lower appellate Court was right in allowing the appeal to proceeded at the instance of the surviving appellant/plaintiff and the point, the learned counsel for the review petitioner has referred to the following cases, viz. (i) Gema Coutinho Rodrigues Vs. Bricio Francisco Pereira & Ors., (1993) 2 SCC 620 (para-4, 5), (ii) Ratna alias Ratnavati Vs. Syndicate Bank & Ors., (1995) 1 SCC 407, (iii) Mithailal Dalsangar Singh & Ors. Vs. Annabai Debrankini & Ors., (2003) 10 SCC 691, and (iii) Sahdeo Singh & Ors. Vs. Ramchhabila Singh & Ors., AIR 1978 Patna 258

5. It is also submitted that non-consideration of the said provisions of CPC was an apparent mistake on part of the Court, which is required to be corrected in exercise of power of review as provided in section 114 and Order XLVII Rule 1 CPC. In this regard the learned counsel for the review petitioner places reliance on the following cases, viz., (i) Lily Thomas & Ors. Vs. Union of India & Ors., (2000) 6 SCC 224 (para 52), and (ii) Board of Control for Cricket in India & Anr. Vs. Netaji Cricket Club & Ors., (2005) 4 SCC 741 (para 90, 92 and 93).

6. The learned counsel for the respondent has vehemently opposed this review petition by submitting that as projected by the learned counsel for the petitioner, the order dated 16.09.2017 was erroneous, which cannot be corrected by exercising review jurisdiction. Thus, the learned counsel has made his submissions in support of the order impugned and in support of his submissions, th