Mahabir Prasad Vs. Jage Ram & Ors
[1971] INSC 3 (6 January 1971)
SHAH, J.C. (CJ) SHAH, J.C. (CJ) HEGDE, K.S.
CITATION: 1971 AIR 742 1971 SCR (3) 301 1971
SCC (1) 265
CITATOR INFO :
MV 1972 SC1181 (36) R 1975 SC 733 (30,34) E
1979 SC1393 (30)
ACT:
Code of Civil Procedure (5 of 1908), O.41, r.
4-Scope of.
HEADNOTE:
The appellant, his wife, and his mother held
a joint decree.
Against an order dismissing the application
for execution of the decree, the appellant alone appealed joining the other two
as party respondents. Pending appeal his wife died.
The High Court dismissed the appeal holding
that because the heirs and legal representatives of the appellant wife were not
brought on record within the period of limitation the appeal abated in its
entirety. , The High Court was of the view that the power of the appellate
court under 0. 41. r. 4 Code of Civil Procedure may be exercised only in those
cases where there is a decree which proceeds upon a ground common to more
persons than one and the appeal is filed by one-, or more of them but not all
and other persons who are interested in the result of the appeal are not made
parties to the appeal. Allowing the appeal, HELD: (i) Power of the appellate
court under 0. 41, r.
4, C.P.C. to, very or modify the decree of a
Subordinate Court arises when one of the persons out of many against whom a
decree or an order had been made on a ground which was common to him and
others, has appealed, and that power may be exercised when other persons who
were parties to the proceeding before the- Subordinate Court are either not
impleaded as parties to the appeal or are impleaded as respondents. The power
is not lost merely because 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.
Ratan Lal Shah v. Firm Lalmandas Chhadammalal
& Anr., [1970] 1' S.C.R. 296, relied on.
Rameshwar Prasad & Ors. v. M/s. Shyam
Beharilal Jagannath & Ors. [1964] 3 S.C.R. 549, distinguished.
(ii) 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 heirs and legal
representatives and no application for impleding them is made within the period
of limitation prescribed by the Limitation Act the proceeding will not abate.
On that ground also the order passed by the High Court cannot be sustained.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 609 of' 1967.
Appeal from the order dated March 3, 1965 of
the Punjab High Court, Circuit Bench at Delhi in Execution First Appeal. No.
192-C of 1961.
S. T. Desai and A. D. Mathur, for the
appellant, V. D. Mahajan, for respondent No. 3.
302 The Judgment of the Court was delivered
by Shah, C. J. Jage Ram and two others-hereinafter collectively called the
defendants-were lessees of certain property belonging to Mahabir Prasad, his mother
Gunwanti Devi and his wife Saroj Devi (collectively referred to hereafter as
'the plaintiffs'.) The plaintiffs commenced an action in the court of the
,Subordinate Judge, First Class, Delhi, for a decree for Rs. 61,750/being the
amount of rent due, by 'the defendants'. The Subordinate Judge, Delhi decreed
the suit.
Execution of the decree was resisted by the
defendants on the plea inter alia, that the decree was inexecutable because of
the provisions of the Delhi Land Reforms Act, 1954. The Subordinate Judge
upheld the contention and dismissed the application for execution. Mahabir
Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj
Devi as party-respondents. Saroj Devi died in November, 1962, and Mababir
Prasad applied that the name of Saroj Devi be struck of from the array of
respondents.
The High Court made an order granting the
application "subject to all just exceptions".
The High Court dismissed the appeal holding
that because t heirs and legal representatives of Saroj Devi were not brought
on the record within the period of limitation prescribed by the Limitation Act
the appeal abated in its entirety. Against that order, this appeal is preferred
with certificate granted by the High Court.
Ile decree in favour of Mahabir Prasad,
Gunwanti Devi and Saroj Devi was a joint decree. Order 41 r. 4 Code of ,Civil
Procedure provides :
"Were there are more plaintiffs or more
defendants than one in a suit, and the decree appealed from proceeds on any
ground common to all the plaintiffs, or to all the defendants, any one of the
plaintiffs or of the defendants may appeal from the whole, decree, and
thereupon the Appellate Court may reverse or vary the decree in favour of all
the plaintiffs or defendants, as the case may be" Order 41 r. 4 Code of
Civil Procedure invests the appellate court with power to reverse or vary the
decree in favour of all the plaintiffs or defendants even though they had not
joined in the appeal if the decree proceeds upon a ground common to all the
plaintiffs or defendants. In the, view of the High Court the power of the
Appellate Court under 0. 41 r. 4 Code of Civil Procedure may be exercised only
in those cases where there is a decree which Proceeds upon a ground Common to
more persons than one and the appeal is filed by one or more of them but not
:all, and other persons who are interested in the result of the 303 appeal are
not made parties to the appeal either as appellants or respondents. Where, ,
such other persons are made parties to the appeal and one of them dies and his
heirs are not brought on the record within the period of limitation prescribed
by the Limitation Act, the appeal abates in its entirety. The High Court
observed :
"Appellant Mahabir Prasad has impleaded
the remaining two decree-holders as respondents to the appeal. the execution
application of all the decree-holders has been dismissed on a common ground
that the decree which is sought to be executed has become null and void. The
appeal abates so far as decree-holder Sarojni respondent is concerned because
her legal representatives have not been brought on the record within time. The,
order of the executing Court has become final so far as this deceased
respondent is concerned. It follows that that order cannot be modified or
varied in favour of appellant Mahabir Prasad and the second surviving
decree-holder respondent for obviously that may result in inconsistent orders
with regard to the same decree: The order of the executing Court in so far as
Sarojni deceased respondent is concerned-has become final and if the same order
is modified or interfered with so far as the other two decree-holders,
namely,appellant Mahabir Prasad and respondent Gunwanti Devi are concerned, the
apparent result will be two inconsistent orders with regard to the same decree
which the decreeholders s eeks to execute. So the appeal of appellant Mahabir
Prasad also abates".
If support of their view the High Court
relied upon the judgment of this Court in Rameshwar Prasad and Others v. Mls
Shyam Beharilal Jagannath and Others.(1) That was a case in which nine persons
instituted a suit for a decree in ejectment and for recovery of rent against
two defendants and obtained a decree. In appeal the District Judge set aside
the decree, against one of the defendants. The plaintiffs filed a second appeal
in the High Court and when the appeal was pending one of the plaintiffs
(appellants in the High Court) died. No application for bringing his legal
representatives on the record was made within the prescribed time. The
respondents objected that the entire appeal had abated because the interest of
the surviving appellants and of the deceased appellant was joint and
indivisible and that in the event of the success of the appeal there would be
two inconsistent and contradictory decrees. The surviving appellants claimed
that the (1) [1964] 3 S.C.R. 549.
304 the appeal was maintainable on the ground
that without impleading the plaintiff who had died they could have appealed
against the entire decree in view of the provisions of 0. 41 r. 4 of the Code
of Civil Procedure, and on that account they were competent to continue the
appeal, even after the death of one or the joint decree-holders and abatement
of the appeal so far as he was concerned, and the Court had power to hear the
appeal and to reverse or vary the whole decree. This Court held that the
provisions of 0.41 r. 4 of the Code of Civil Procedure were not applicable, for
the second appeal in the High Court was filed by all the plaintiffs jointly,
and the surviving appellants could not be said to have filed the appeal as
representing the deceased appellant. The Court further held that the appellate
court had no power to proceed to hear the appeal and to reverse or vary the
decree in favour of all the plaintiffs or defendants under 0. 41 r. 4 of the
Code of Civil Procedure, when the decree proceeded on a ground common to all
the plaintiffs, or defendants, if all the plaintiffs or the defendants appealed
from the decree and any of them died, and the appeal abated in so far as he was
concerned under 0. 22 r. 3, of the Code of Civil Procedure.
Rameshwar Prasad's case(1) is obviously
distinguishable from the present case. In Rameshwar Prasad's caseall the
plaintiffs whose suit had, been dismissed had filed an appeal and thereafter
one of them died and his heirs were not brought on the record. In the, present
case there is an order against the decree-holders but all the decree-holders
did not appeal : only one of them appealed and other two were joined as party
respondents.
In a later judgment of this Court in Ratan
Lal Shah v. Firm Lalmandas Chhadammalal & Anr. (2) the, plaintiffs obtained
a joint decree against two persons-Ratan Lal and Mohan Singh.
Against the decree Ratan Lal alone appealed
to the High Court of Allahabad. Mohan Singh was impleaded as a party-
respondent to the appeal. Notice of appeal sent to Mohan Singh was returned
unserved, and no steps were taken to serve him with notice of the appeal. The
High Court dismissed the appeal holding that there was a joint decree against
Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the
decree against Mohan Singh had become final. The appellant could not, on that
account claim to be heard in his appeal if he was heard and his claim was
upheld. The High Court observed that there would be two conflicting decisions
between the same parties and in the same suit based on the same cause of
action. This Court set aside the judgment of the High Court observing that even
though Mohan (1) [1964] 3 S.C.R. 549.
(2) [1970] 1 S.C.R. 296.
305 Singh was not served with notice of
appeal, the appeal filed by Ratan Lal was maintainable, in view of the
provisions of
0. 41 r. 4 Code of Civil Procedure. In Ratan
Lal Shah's case(1) this Court allowed the appeal to be prosecuted, even though
one of the joint decree-holders impleaded as a party- respondent had not been
served with the notice of appeal.
In the present case one of the respondents
had died and his heirs have not been brought on the record. No distinction in
principle may be made between Ratan Lal Shah'J case(1) and the present case.
Competence of the appellate court to pass a decree appropriate to the nature of
the dispute in an appeal filed by one of several persons against whom a decree
is made on a ground which is common to him and others is not lost merely
because of the persons 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 Order 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 had been made on a ground
which was common to him and others has appealed. That 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 to the
appeal or are impleaded as respondents. The view taken by the High Court cannot
therefore be sustained.
Even on the alternative ground that Mahabir
Prasad being one of the heirs of Saroj, Devi there can be no abatement merely
because no formal application for showing Mahabir Prasad as an heir and legal
representative of Saroj Devi was made.
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 heirs 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. On that ground also the order passed by the High Court cannot be,
sustained.
The appeal is allowed and the proceeding
remanded to the High Court to be dealt with and disposed of according to law.
Defendants will pay the costs of this appeal. Costs in the High Court will be
the costs in the appeal.
K.B.N. Appeal allowed.
(1) [1970] 1 S.C.R. 296.
Back
