Case Note & Summary
The case arose from a partnership dispute concerning Modern Ice Factory at Gurdaspur. One Mathra Singh, as Plaintiff No.1, and defendant Nos.1 to 13 were partners of the factory. A suit was filed for dissolution of partnership and rendition of accounts. The trial court dismissed the suit. The first appellate court also dismissed the appeal. While the second appeal, being Second Appeal No.477 of 1968, was pending before the Punjab and Haryana High Court, two of the partners died. Their legal representatives were not brought on record. Consequently, the High Court dismissed the second appeal as having abated against all respondents. Aggrieved, the appellant, Shri Bakshish Singh (since deceased, through legal representatives), filed an appeal by special leave before the Supreme Court. During the pendency of the Supreme Court appeal, respondent Nos.8 and 14(i) also died, and no steps were taken to bring their legal representatives on record. The Registry reported these deaths. The appellant's counsel contended that the original partners were respondent Nos.2, 14 and 15, and as against them the appeal had not abated; therefore the High Court erred in concluding that the appeal abated against other persons who had subsequently purchased the interest of the partners. The Supreme Court examined whether the second appeal abated as a whole when some respondents died and their legal representatives were not impleaded, especially when the decree was single and indivisible. The Court reiterated the settled principle that when a decree is single and indivisible, there cannot be inconsistent decrees as against the deceased respondents and the contesting surviving respondents. Since two respondent-partners died pending the second appeal, their rights under the decree dismissing the suit had become final, and it was not possible to adjudicate the rights of other contesting respondents without resulting in inconsistent decrees. Therefore, the High Court had not committed any error of law in dismissing the second appeal as abated. The same situation was confirmed in the appeal before the Supreme Court because respondent Nos.8 and 14(i) had died and their legal representatives had not been brought on record, causing the appeal to abate as against them. The Court held that it could not proceed on merits against the contesting respondents when the rights of the deceased respondents had already become final. Accordingly, the appeal stood abated against all respondents and was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Abatement of Appeal - Decree Single and Indivisible - Not mentioned - When two respondent-partners died during pendency of second appeal and their legal representatives were not brought on record, the High Court dismissed the second appeal as abated against all respondents; the Supreme Court held that since the decree was single and indivisible, inconsistent decrees between deceased and surviving respondents were impermissible, and the appeal could not proceed on merits. Held that the High Court committed no error of law (Paras 1-2). B) Civil Procedure - Abatement of Special Leave Appeal - Death of Respondents Pending Appeal - Not mentioned - Pending special leave appeal, respondent Nos.8 and 14(i) died and no legal representatives were brought on record; the Supreme Court held that the same principle of abatement applied, and it could not proceed on merits against contesting respondents when rights of deceased respondents had become final. Held that the appeal stood abated against all respondents and was dismissed with no costs (Paras 1-2).
Issue of Consideration
Whether a second appeal abates as a whole when some respondent-partners die during pendency and their legal representatives are not brought on record, particularly when the decree is single and indivisible; whether the same principle applies to the appeal before the Supreme Court when some respondents died pending appeal.
Final Decision
The appeal stood abated against all respondents and was dismissed with no order as to costs. The Supreme Court affirmed the High Court's dismissal of the second appeal as abated, holding that no inconsistent decrees could be passed when the decree was single and indivisible and legal representatives of deceased respondents were not brought on record.
Law Points
- When a decree is single and indivisible
- an appeal cannot proceed if it has abated as against some respondents
- as inconsistent decrees cannot be passed against deceased and surviving respondents
- failure to bring legal representatives of deceased respondents on record results in abatement of the entire appeal
- special leave appeal also abates if respondents die pending appeal and no steps are taken
