Sri Chand & Ors Vs. M/S. Jagdish Parshad Kishan Chand  INSC 34 (4
04/02/1966 SHAH, J.C.
1966 AIR 1427 1966 SCR (3) 451
1972 SC1181 (16) R 1973 SC 655 (7)
of Civil Procedure (Act V of 1908), O. 41 r. 4Abatement of Appeal with respect
to one appellant-When operates as abatement of entire appeal-Supreme Court
Rules, 1950, O. 16 r. 14.
1st respondent filed a suit against the 2nd respondent for recovery of money
and in pursuance of an order of the Court directing the 2nd respondent to
furnish security for satisfaction of the decree that may be passed against him,
the three appellants and two others stood sureties agreeing jointly and severally
to satisfy the decree. After the 'suit was decreed the first respondent applied
for execution of the decree against the sureties. The-sureties raised the pleas
that the surety bond was not enforceable because it was not registered, and
that the degree holder had committed acts by which the remedy of the sureties
against judgment debtor was impaired, but the pleas were negatived by the
executing court and the High Court. After the three appellants preferred an
appeal to this Court, one of then died and since his legal representatives was
not brought on record, the, appeal abated, as far as he was concerned.
the question whether the appeal in Sol far as the other two appellants were
concerned also abated,
: Applications to bring on record legal representatives of a deceased appellant
or respondent were governed by 0, 16, r 14 of the Supreme Court Rules, 1950,
and the rule applied to all classes of appeals including appeals arising from
orders in execution. Because the representatives of the deceased appellant
were. not brought on record within the time permitted by the rule and the delay
in filing the petition to bring the representatives on record was not condoned,
the appeal of the deceased appellant abated.
the liability of the sureties was joint and several.
this Court proceeds with the appeal of the other two sureties and holds that
the High Court was in error in rejecting their contentions, there would be two
inconsistent orders-one passed by the High Court holding that the surety bond
was enforceable, and the other-of this Court that it was not enforceable.
Therefore., the appeal must be held to have abated in its entirety. [454 D; 456
B; 457 B] State of Punjab v. Nathu Ram,  2 S.C.R. 636 and Rameshwar
Prasad and others v. Shahbehari Lal,  13 S.C.R. 549, followed.
APPELLATE JURISDICTION : Civil Appeal No. 425 of 1963.
by special leave from the Judgement and order dated April 14, 1960 of the
Punjab High Court (Circuit Bench at Delhi) in L.P.A. No. 17-D of 1960.
Singh and Amar Singh, for appellant No. 1.
M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No. 3.
Bishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury, for respondent No. 1.
Behari Lal, for respondent No. 3.
K. Mehta and K. L. Mehta, for respondent No. 4.
Judgment of the Court was delivered by Shah, J. Messrs Jagdish Pershad Kishan
Chand-hereainafter called 'the first respondent commenced suit No. 265 of 1952
in the Court of the Senior Subordinate Judge, Delhi, against the second
respondent for a decree for possession of goods hypothecated to them by Messrs.
Mudgal Motors Ltd.,-second respondent in this 'appeal. The 'first respondent
filed another suit No. 43 of 1952 for a decree for Rs. 42,914/10/being the
amount due at the foot of the hypothecation account, and for sale of the goods
in satisfaction' of the amount due. The two suits were consolidated for trial.
In suit No. 43 of 1952 the first respondent applied for appointment of a
receiver and the Court directed the second respondent to furnish security in
the sum of Rs. 50,000/-.
to this order five persons stood sureties for satisfaction of the decree. It
was recited in the surety bond dated April 21, 1953, that the five sureties
mortgaged the properties specified in the Schedule annexed thereto and jointly
and severally agreed that if any decree was passed against the second
respondent they shall comply with the same and in default the amount payable
under the decree but not exceeding Rs.50,0001shall be realized from the
properties mortgaged. This surety bond was not registered.
of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this
January 14, 1955, the second respondent was ordered to be wound up in a
petition presented by the first respondent to the District Court, Delhi. Suit
No. 265 of 1952 was thereafter withdrawn and in suit No. 43 of 1952 a decree
was passed against the second respondent for RS. 42,914/10/with costs and
future interest at percent per cent per annum. The first respondent then
applied to execute the decree against the sureties. The sureties objected to
the execution of the decree against them on the grounds, inter alia, that the
surety bond not being registered as required by law, the application for
execution just fail, and that since the first respondent had committed acts by
which the remedy of the sureties against the second respondent had been
impaired the sureties stood discharged. The Commercial Subordinate Judge, First
Class, Delhi, rejected the objections raised by the sureties, and the order of
the Subordinate Judge was confirmed by Grover, J,, in appeal to the High Court
of Judicature, Punjab. Appeals against the order of Grover, J., under the
letters patient of the High Court were dismissed in limine. With special leave
granted on August 12, 453 1962, Sri Chand, Basant Lal and Debi Ram-three of the
sureties--have appealed to this Court.
Lal, one of the appellants died on October 18, 1962.As he died before the record
of the appeal was transmitted to this Court, his heirs and legal
representatives applied on July 24, 1963, to the High Court for an order under
0, 16, r. 12 of the Supreme, Court Rules, 1950, certifying that they' were
proper parties to be impleaded as legal representatives on the record of the
appeal. They also applied for condonation of delay in moving the application.
High Court held that there *as no adequate explanation justifying an order
condoning the delay in making the application for bringing the heirs on record
and accordingly the application for condonation of delay and the.' application
for certifying the heirs were dismissed. A petition submitted to this Court for
impleading the heirs and legal representatives in the appeal was also dismissed
by an order made in chamber on February 9, 1965. Thereafter a petition was
filed on May 7, 1965 for special leave to appeal against the order passed by
the High Court refusing to bring on record the legal representatives of Basant
Lal. By order dated January 20, 1966 we have rejected this petition.
for the first respondent contended that the appeal' had abated in its entirety
because, the heirs of Basant Lal had not been brought on record, and the ground
on which the judgment of the High Court proceeded was common to all the.
In our view this objection must be upheld. The appeal of Basant Lal has abated
since the legal representatives to his estate have not been impleaded and the
record of the appeal is defective. That is not denied by the appellants. But it
is urged that this Court is competent to set aside an order of the High Court
in its entirety on the ground that it is not sustainable in law and in any
event to set aside the order in so far as it affects the claim of appellants 1
& 3 and the third respondent.
was sought to be derived for the first contention from 0 41, r. 4 of the Code
of Civil Procedure and it was urged that even if the decree be assumed to have
proceeded on a ground common to all the sureties, it is open to any one or more
of the sureties to appeal from the order and the appellate Court may reverse or
vary the decree in favour of all the sureties. This plea stands refuted by the
judgment of this Court in Remeshwar Prasad, and Others v. Shambehari Lal
Jagannath and another.(1) It was held by this Court in Rameshwar Prasad's case
(1) that an appellate Court has no power to proceed with an appeal and to
reverse and vary the decree in favour of all the plaintiffs or defendants under
0 41 ' r. 4 when the decree proceeds on a ground common to all the plaintiffs
or defendants, if' all the plaintiffs or the defendants appeal from the decree
and any of them dies and the appeal abates so far' as he is concerned.
 3 S.C.R. 549.
two principal pleas raised before Grover, J., were that the surety bond was not
enforceable because it wss not registered and that the decree-holders had
committed an act by which the remedy of the sureties against the judgmentdebtor
had been impaired and therefore the sureties stood discharged. The learned
Judge negatived both the pleas.
decision of the Court obviously proceeded on grounds which were common to all
Lal died after the order of the High Court under appeal. He had preferred an
appeal, but since the legal representatives to his estate have not been brought
on record, his appeal has abated. The order of the High Court holding that the
sureties are liable to satisfy the claim notwithstanding the objections raised
by. Basant Lal has become final; In the appeal filed by the appellants 1 &
3 if this Court holds that the High Court was in error in deciding that the
surety bond was not enforceable because it was not registered, or that the
first respondent has done some act which has discharged the sureties from
liability under the bond, there would unquestionably be two inconsistent
orders-one passed by the High Court holding that the surety bond was
enforceable, and the other, the view of this Court that it is not enforceable.
Court has on more occasions than one considered whether in circumstances
similar to these, an appeal should stand abated in its entirety. In the State
of Punjab v. Nathu Ram (1) this Court explained the tests applicable in
considering whether an appeal abates in its entirety when it has abated qua one
of the respondents. The head note of the case reads "If the Court can deal
with the matter in controversy so far as regards the rights and interest of the
appellant and the respondents other than the deceased respondent, it has to
proceed with the appeal aid decide it :
it will have to refuse to proceed further with the appeal and therefore dismiss
it. Ordinarily, the consideration which will weigh with the court deciding upon
the question whether the entire appeal had abated or not will be whether the
appeal between the appellants and the respondents other than the deceased
respondent can be said to be properly constituted or can be said to have all
the necessary parties for the decision of the controversy before the court-and
the tests to determine this have been described thus :
when the success of the appeal may lead to the courts coming to a decision
which will be in conflict with the decision between the appellant and the
deceased ,respondent and therefore which would lead to the court's (1)  2
passing a decree which will be contradictory to the decree which had become
final with respect to the same subjectmatter between the appellant and the
deceased respondent; (b) when the appellant could not have brought the action
for the necessary relief against those respondents alone who are still before
the court and (c) when the decree against the surviving respondents, if the
appeal succeeds, be ineffective that is to say it could not be successfully
abatement of an appeal against the deceased respondent means not only that the
decree between the appellant and the deceased respondent has become final, but
also as a necessary corollary that the appellate court cannot in any way modify
that decree directly or indirectly.
the decree in favour of the respondents is joint and indivisible, the appeal
against the respondents, other than the deceased respondent cannot be proceeded
with if the appeal against the deceased respondent has abated." The
principle of this judgment was affirmed in Rameshwar Prasad's case (1) and
later in an unreported judgment in Kishan Singh and others v. Nidhan Singh and
others (2). It may be pointed out that the three tests suggested by Raghubar
Dayal, J., in Nathu Ram's case (3) are not cumulative tests. Even if one of
them is satisfied, the Court may, having regard to all the circumstances, hold
that the appeal has abated in its entirety.
counsel for the appellants has contended that the rules laid down by this Court
in Nathu Ram's case (3) and other cases has no application to this appeal,
firstly,because this appeal arises from an order in execution proceeding and
rules as to abatement by the express provision contained in 0 22, r. 12 Code of
Civil Procedure have no application to appeals in an execution proceeding, and
secondly, that in cases in which the order or decree appealed against gives
rise to a liability Which is joint and several it is open to one of the persons
declared so liable to prosecute an appeal in so far as he is concerned,
notwithstanding abatement of the appeal of a co-obligee. Order 22, r. 12 of the
Code of Civil Procedure provides that nothing in rules 13, 4 and 8 shall apply
to proceedings in execution of a decree or order. On the true interpretation of
this rule there is conflict of opinion in the High Courts. In some cases the
view has prevailed that appeals from orders in execution proceedings are not
subject to rules 3, 4 and 8 of O 22, Code of Civil Procedure and failure to
implead heirs. and legal (1)  3 S.C.R. 549.
C.A. 563 of 1963 decided on Dec. 14, 1964.
Sup. CI/6-16 (3)  2 S.C.R. 636 456 representatives of a deceased party in
such an appeal will not be visited by an order of abatement. In other cases it
has been held that an appeal against an order in execution is not "a
proceeding in execution of a decree" and that such an appeal will abate if
the heirs are not brought on record within the period of limitation, and that
r. 12 has no application to appeals. In this appeal it is not necessary to
resolve this conflict, for, appeals to this Court are governed by the rules
contained in 0.16 of the Supreme Court Rules, 1950, and by r. 14 thereof it is
application to bring on record the legal representative of a deceased appellant
or respondent shall be made within ninety days of the death of the said appellant
or respondent Provided that in computing the said period the time taken in
obtaining a certificate from the High Court shall be excluded." The rule
is explicit and makes no exemption in favour of any class of appeals. It is
true that r. 14-A of 0 16 of the Supreme Court Rules, 1950, provides that :
provisions of Order XXII of the Code relating to abatement and of Article 171
in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall,
so far as may be applicable, apply to appeals and proceedings under rule 12 and
rule 13 in the High Court and in the. Supreme Court." and there by the
provisions of O. 22 relating to abatement of appeals are attracted. But there
is no warrant for holding that any class of appeals filed in this Court is
exempt from the operation of r. 14.
of the sureties is under the law joint and several. if a creditor seeks to
enforce the surety bond against some only of the joint sureties, the other
sureties will not on that account be discharged : nor will release by the
creditor of one of them discharge the other : vide ss.
& 138 of the Contract Act. But the fact that the surety bond is enforceable
against each surety severally, and that it is open to the creditor to release
one or more of the joint sureties, does not alter the true character of an
adjudication of the Court when proceedings are commenced to enforce the
covenants of the bond against all the sureties.
are not concerned in this appeal with the privilege which a creditor may
exercise, but with the effect of an adjudication which the Court has made in a
proceeding to enforce the covenant of the bond. The mere fact that the
obligation arising under a covenant may be enforced severally against all the
covenantors does not make, 457 the liability of each covenant or distinct. It
is true that in enforcement of the claim of the decree-holder the properties
belonging to the sureties individually may be sold separately. But that is
because the properties are separately owned and not because the liability
arises under distinct transactions.
must therefore be held that the appeal has abated, because the representatives
of the second appellant-Basant Lal-have not been brought on record within the
time permitted by r. 14 of 0. 16 of the Supreme Court Rules, 1950, and the
delay in filing the petition to bring the representatives on record has not
appeal must therefore fail and is dismissed. Having regard to the
circumstances, there will be no order as to costs in this appeal.