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High Court Of Rajasthan
Judgename : C.M.Lodha
BHANWARLAL - Appellant
Versus
BHULIBAI - Respondent
Second Appeal 91 Of 1965
Decided On : 09/08/1971
ABATEMENT OF APPEAL - DEATH OF RESPONDENT - SUBSTITUTION OF LEGAL REPRESENTATIVES - LIMITATION - EFFECT ON APPEAL - JOINT DECREE - NECESSITY TO BRING ALL LEGAL REPRESENTATIVES ON RECORD - ORDER 22, RULE 4, C. P. C. - INTERPRETATION.
Fact of the Case:
During the pendency of an appeal, one of the respondents, Mohanlal, died. The appellant filed an application to substitute the legal representatives of Mohanlal, but later withdrew it. The respondents raised a preliminary objection that the appeal had abated as a whole due to the failure to substitute the legal representatives.
Finding of the Court:
The court held that the appeal had abated as a whole. It observed that the right to appeal did not survive against the surviving respondents alone because of the jointness of the decree in favor of Smt. Bhuli Bai and the deceased Mohanlal. Therefore, it was obligatory for the appellant to make an application under Order 22, Rule 4 (1), C. P. C., to bring the legal representatives of the deceased Mohanlal on record within the time limit prescribed by law.
Issues: 1. Whether the appeal had abated as a whole due to the failure to substitute the legal representatives of the deceased respondent? 2. Whether the appeal could be decided without bringing into existence two contradictory decrees in the same litigation?
Ratio Decidendi: 1. The court held that the appeal had abated as a whole because the right to appeal did not survive against the surviving respondents alone. It relied on Order 22, Rule 4 (1), C. P. C., which provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, the court shall cause the legal representative of the deceased defendant to be made a party. 2. The court held that the appeal could not be decided without bringing into existence two contradictory decrees in the same litigation. It observed that if the appeal was allowed only against the surviving respondents, who were on the record, the result would be that there would be two inconsistent decrees -- one decree in favor of the auction-purchaser-appellant against the respondents on the record in respect of the interest of Mst. Bhuli Rai, and the other decree of the lower appellate Court against the appellant in respect of the interests of Mohanlal's widow, daughter, and son.
Final Decision: The court dismissed the appeal as having abated, but made no order as to costs of the appeal. The cross-objection regarding costs of the Courts below was also dismissed without any order as to costs.
Key Points: - The appeal abates as a whole where the right to appeal did not survive against surviving respondents due to joint decree, and substitution of the deceased defendant’s legal representatives was not properly made (Order 22, Rule 4, CPC) (!) (!) . - Substitution of Mohanlal’s legal representatives was withdrawn, leading to absence of properly on-record heirs, causing abatement and potential inconsistent decrees if only surviving respondents are allowed (!) (!) (!) (!) . - Supreme Court observations cited that if a legally represented heir is already on record in another capacity, abatement may not occur, but those remarks were distinguishable from the case facts and not controlling here (!) (!) (!) . - The Court held that the appeal abated as a whole and was dismissed without costs due to the risk of two contradictory decrees in respect of the same subject-matter (!) (!) (!) . - Cross-objection regarding costs of the Courts below was dismissed without any order as to costs (!) .
C. M. LODHA, J.
( 1 ) A preliminary objection has been raised in this appeal on behalf of the respondents that the appeal has abated as a whole on account of the failure on the part of the appellant to substitute the legal representatives of the respondent mohanlal, who admittedly died on" 1-5-68, during the pendency of this appeal. In order to appreciate the preliminary objection it may the necessary to narrate a few facts giving rise to this appeal.
( 2 ) RESPONDENTS Nos. 2 and 8 Rekhchand and Gokalchand (defendants) obtained a money decree against respondent-defendant No. 4 Balmukand. In execution of that decree the house in dispute was auctioned and purchased by the appellant bhanwarlal, Objection under Order 21, Rule 58, C. P. C. , was preferred by mohanlal (deceased) son of Balmukand, but the same was dismissed. Consequently the respondent No. 1 Smt. Bhuli Bai, wife of Balmukand, in her personal capacity as also in the capacity of the guardian of her minor son Mohanlal filed the present suit under Order 21, Rule 63, C. P. C. , for declaration that the decree in execution of which the property in question has been sold, was in respect of an immoral debt incurred by Balmukand and, therefore, the sale of the suit property in favour of Bhanwarlal was void and ineffective. The suit was resisted by the auction-purchaser Bhanwarlal as well as the decree-holder rekhchand and Gokalchand.
( 3 ) AFTER recording the evidence produced by the parties the trial Court dismissed the suit on 5-12-61. The plaintiff filed appeal in the Court of the District Judge, kota, who by his judgment dated 8th February, 1965, set aside the judgment and decree of the trial Court and decreed the plaintiffs suit and thereby granted a declaration in the plaintiffs favour that the attachment and sale of the suit property was inoperative and ineffective against the plaintiffs.
( 4 ) DISSATISFIED with the judgment and decree of the District Judge, Kota, defendant-auction-purchaser Bhanwarlal has come in second appeal to this Court. As already stated above, plaintiff Mohanlal died during the pendency of this appeal on 1-5-68. On 24th February, 1969, the appellant made an application for substituting the names of Smt. Premlata widow of Mohanlal, Smt. Mangla daughter of Mohanlal and Purshottam son of Mohanlal in place of deceased mohanlal as his legal representatives. Since the application was prima facie barred by limitation, it was submitted by the appellant that he had come to know of the death of Mohanlal on 20th February, 1969, and therefore the delay in filing the application may be condoned.
( 5 ) THIS application was opposed on behalf of the respondents on the ground that the appellant knew of the death of Mohanlal, the very day Mohanlal died, that is, on 1-5-68 and consequently no sufficient ground was made out for condoning the delay. However, when the application came up for orders on 25-2-70, learned counsel for the appellant did not press it and got it dismissed as withdrawn, with the result that the name of Mohanlal was struck off from the array of respondents.
( 6 ) NOW at the time of the hearing of the appeal, a preliminary objection has been raised on behalf of the respondents that the appeal is not properly constituted and has abated on account of the legal representatives of Mohanlal having not been brought on record. It is submitted that the decree granted by the learned District judge in favour of Mohanlal declaring that the sale of the suit property to the appellant Bhanwarlal was void and ineffective has become final and now if bhanwarlals appeal is accepted and the decree passed in favour of the other plaintiff-respondent Smt. Bhuli Bai is set aside it would result in conflicting decrees. It is thus argued that the whole appeal must be dismissed as having abated.
( 7 ) ON the other hand, learned counsel for the appellant has contended that balmukand, who was the manager of the joint Hindu family, of which the deceased moha
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