IMPORTANT POINT
Abatement of appeal – Whole appeal will not abate in all cases.

ORDER

Devendra Kachhawaha, J.—The instant second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants, who were defendants in the suit, against the judgment and order dated 04.02.2010 passed by the Additional District Judge, Anoopgarh, District Sriganganagar in Civil Appeal No. 09/2005 titled as “Usman Ghani & Ors. Vs. Mukand Singh” by which, the appeal of the defendants-appellants has been dismissed and the judgment and decree dated 18.03.2006 passed by the Civil Judge (Senior Division), Anoopgarh in Civil Suit No. 11/1999 titled as “Mukand Singh Vs. Usman Ghani & Ors.” by which, the learned Trial Court has decreed the suit for specific performance of the contract dated 14.08.1975 in favour of the plaintiff - Mukand Singh, has been affirmed.

2. During the pendency of the said appeal, the instant application under Order 22 Rule 9 of the Code of Civil Procedure was filed by the respondents on 25.09.2019 with the prayer that the application filed by the respondent/plaintiff under Order 22 Rule 9 CPC may kindly be allowed and the whole appeal may kindly be abated in view of this fact that the appeal against appellant No.2 Yahiya Khan has already been abated vide order dated 03.05.2017.

3. In support of the application filed under Order 22 Rule 9 CPC dated 25.09.2019, learned counsel for the respondents stated that the suit for specific performance of a contract was filed against five defendants (present appellants) jointly and the same was contested jointly and decree jointly against all the five defendants by the learned Trial Court vide judgment and decree dated 18.03.2005. Joint first appeal was filed by all the five defendants and the same was dismissed by the First Appellate Court vide judgment and decree dated 04.02.2010. Then, the present second appeal was filed by all the five appellants jointly. During the pendency of this appeal, appellant No.5 Muyasha @ Ayasha W/o late Ibrahim, i.e., the mother of the appellant Nos. 1 to 4, died on 29.06.2010. Without information of this fact, the present second appeal was admitted and substantial question of law was framed on 24.02.2011. In the year 2013, i.e., on 05.01.2013, the appellant No. 2 (Yahiya Khan S/o late Ibrahim) was also expired during the pendency of the appeal. Application for bringing the legal representatives of both the deceased appellants was filed in the year 2017. Before filing of that application, on 21.02.2017, learned counsel Mr. Devendra Singh appearing for Mr. Vishal Singhal pleads no instructions on behalf of the appellants and, therefore, the appeal was dismissed for want of prosecution. The appeal was restored back to its original number on 03.03.2017 by allowing S.B. Civil Restoration Application No. 23/2017. Application under Order 22 Rule 3 & 9 of the Code of Civil Procedure was decided by this Court on 03.05.2017, after death of appellant Nos. 2 & 5. He further stated that initially the appeal was declared abated qua deceased appellant No. 2 and 5 on 03.05.2017 but subsequently, vide order dated 01.06.2017, the earlier order dated 03.05.2017 was modified and since the legal representatives of the deceased appellant No.5 were already on record, as appellants No. 1 to 4 and, therefore, the order dated 03.05.2017 abating this appeal qua appellant No. 5 was recalled and the order qua appellant No. 2 stands as it is. Lastly, learned counsel for the respondents urges that the application may kindly be allowed and the whole appeal may kindly be abated. In support of this contentions, learned counsel for the respondents has relied upon the following judgments:-

(1) Rendered in the case of State of Punjab Vs. Nathu Ram, AIR 1962 SC P.89;

(2) Rendered in the case of Rameshwar Prasad & Ors. Vs. Shambehari Lal Jagannath & Anr., AIR 1963 SC P.1901;

(3) Rendered in the case of Dwarka Prasad Singh & Ors. Vs. Harikant Prasad Singh & Ors., AIR 1973 SC P.655;

(4) Rendered in the case of Firdous Omer (D) by Lrs & Ors. Vs. Ban