1982 Supreme(MP) 727

IN THE HIGH COURT OF MADHYA PRADESH
R.K. VIJAYWARGIYA, J.
Govind - Appellant
Vs.
Jangannath - Respondents
F.A. No. 39 of 1972 (I)
Decided On : 01-09-1982

Headnote:(1) Civil Procedure Code, 1908 – O. 22, R. 3 & 11 – trial Court passed decree against appellant jointly and severally – one appellant died – LR's not substituted – appeal wholly abated.

       (2) Civil Procedure Code, 1908 – O. 41, R. 4 – power under – when may be exercised – appeal by defendants against joint and several decree – one of the appellants died – LR's not brought on record – powers cannot be exercised.

        Short Note

       1. A preliminary objection is raised at the hearing of the appeal by the respondents that the appeals as a whole has abated because of the non substitution of the legal representative of the deceased appellant No. 3 within limitation. The learned counsel for the appellants countered the said objection by submitting that the remaining appellants who are the sons of the appellant No. 3 are already on record and sufficiently represent the estate of the appellant No. 3 and therefore this appeal has not abated.

       Held : Having heard learned counsel for the parties I have come to the conclusion that the preliminary objection deserves to be sustained and this appeal has to be dismissed as having abated. The facts are not in dispute. The appellant No. 3 Sitaram died on 12 – 6 – 76, the appellant No. 3 are also his legal representatives and they are already on record in their capacity as appellants. The deceased has left behind his widow and three daughters who are his other legal representatives. No application has been submitted to bring the legal representatives of the deceased appellant No. 3 on record within three years of his death. The application submitted on 11 – 12 – 81 for that purpose was also not pressed and was therefore dismissed. The effect is that no application for substitution of legal representatives of the deceased appellant on record is made in the present appeal. No application is also submitted by the appellants that it be described that they are also on the record as heir and legal representatives of the deceased appellant No. 3.

       2. The learned counsel for the appellants contended that as the appellant No. 1 and 2 are the heirs and legal representatives of the appellant No. 3 and they are already on record as the appellants it is not necessary that other legal representatives of the appellant No. 3 should be substituted and the appeal has not abated for their non – substitution. He placed reliance upon a decision of Supreme Court in Mahabir Prasad v. Jage Ram and others (A.I.R. 1971 SC 742).

       3. The contention of the learned counsel for the appellants can not be upheld. The decision of the Supreme Court relied upon by the learned counsel for the appellants is distinguishable on facts and is not applicable to the present case. In that case the decree – holders applied for execution of the decree jointly obtained by them. The executing Court upheld the objection of the Judgment debtors that the decree was not executable. One of the decree holders preferred appeal against the order of the executing Court and the other decree – holders were joined as respondents. During the pendency of the appeal one of the joint decree – holders who was made a respondent died and her legal representatives were not brought on record, her name was ordered to be struck of from the memo of appeal. The appeal was dismissed by the High Court as having abated. On appeal the Supreme Court held that the appellate Court had the power to pass a decree appropriate to the nature of the dispute in an appeal filed by the one of several persons against whom a decree is made on a ground which is common to him and others and this power is not lost merely because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record. Power of the appellate Court under O. 41, R. 4 to vary or modify the decree of a subordinate Court arises when one of the persons out of many against whom a decree or an order has been made on a ground which was common to him and others have appealed. The power may be exercised when other persons who were parties to the proceeding before the subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties or are impleaded as respondents. In the present case deceased Sitaram and the appellants preferred joint appeal and therefore the aforesaid decision is not applicable.

       4. The learned counsel for the appellants however, relied upon the following observations of the Supreme Court in para six of the judgment: –

       “Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heir and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate”

       5. The above observations of the Supreme Court are also not helpful to the appellants. In the present case application that it should be described that they are also on the record as the heirs and legal representatives of the deceased appellant No. 3. Moreover, when some of the legal representatives of the deceased party are already on record an application for substitution of his other legal representatives is not required to be made within 90 days under Article 120 of the Limitation Act but such an application can be made within three years under the residuary Article 137 of the present Limitation Act, (See Abdul Baki Sheikh Ibrahim Musalman v. Bansilal Abhirchand Firm Nagpur – A.I.R. 1945 Nag. 53) and, Aziz Mohammad v. Tamnnabai, Civil Revision No. 125 of 70, decided on 31 – 1 – 72 and Jainuddin v. Jehrabbibi and others Misc. Appeal No. 58 of 1971, decided on 9 – 10 – 1974).

       6. In Jainuddin's case a single Judge of his Court placing reliance upon the aforesaid judgment of the Supreme Court in Mahavir Prasad v. Jage Ram and others (supra) held that as one of the legal representatives is already on record, the other could be brought in within a period of three years. As a corollary if no application for the substitution of the other legal representatives of the deceased is made within three years the appeal against him abates.

       7. In the present cases stated above no application of any kind was made for the substitution of the legal representatives of the deceased appellant No. 3 within three years of death and the application which was made in the year 1981 for that purpose was also not pressed and was dismissed. In the circumstances I am of the opinion that the appeal preferred by the appellant No. 3 has abated.

       8. The next question that arises for consideration is whether the appeal has abated as a whole. As stated above by the decree of the trial Court all the three appellants are jointly and severally held liable for the claim of the plaintiffs. By reason of the abatement of the appeal preferred by the deceased appellant No. 3 Sitaram the decree passed by the trial Court has become final against him. The decree passed by the trial Court therefore can not be modified or varied in favour of the present appellants for obviously that would result in inconsistent decree with regard to the same matter. In such a case the consequence would be that there would be inconsistent and different decrees against the deceased appellant No. 3 and the present appellants. So the appeal preferred by the other appellants also abates by reason of the abatement of the appeal preferred by the deceased appellant No. 3.

       9. It was next contended that this Court should exercise power under O. 41. R. 4 CPC because the decree appealed against proceeded on a ground common to all the defendants and this appeal may be treated as having been filed by two of the defendants and therefore this Court is competent to reverse or vary the decree in favour of all the defendants. This contention also can not be upheld. The present is not a case where the defendant No. 3, has not preferred any appeal and the appeal was preferred only by two of the defendants. This appeal was also preferred by the defendant No. 3 who died during the pendency of the appeal and the appeal preferred by him has abated. In the circumstances the powers under O. 41, R. 4 CPC cannot be exercised by this Court as held in Rameshwar Prasad v. Shyam Behairilal Jagannath (AIR 1963 SC 1901). AIR 1971 SC 742, distinguished. AIR 1963 SC 1901, AIR 1945 Nag. 53 followed. Appeal dismissed as abated.