Case Note & Summary
The dispute arose from a rent decree passed in favour of three joint decree-holders, Mahabir Prasad, his mother Gunwanti Devi, and his wife Saroj Devi, against certain lessees. The trial court decreed the suit for Rs. 61,750, but the executing court dismissed the execution application holding the decree inexecutable under the Delhi Land Reforms Act, 1954. Mahabir Prasad alone appealed against the dismissal, impleading the other two decree-holders as party respondents. During pendency of the appeal, Saroj Devi died in November 1962. Mahabir Prasad applied to strike off her name, which the High Court allowed subject to all just exceptions. However, the High Court ultimately dismissed the appeal on the ground that because the heirs and legal representatives of Saroj Devi were not brought on record within the limitation period, the appeal abated in its entirety. The High Court reasoned that the power under Order 41 Rule 4 CPC could be exercised only when the appeal is filed by one or more of several persons on a common ground and the other interested persons are not made parties; once made parties, the death of such a party without substitution would abate the whole appeal. The High Court relied on Rameshwar Prasad v. Shyam Beharilal Jagannath in which all plaintiffs had jointly appealed and one had died, leading to abatement. The Supreme Court distinguished Rameshwar Prasad, noting that here only one of the joint decree-holders appealed and the others were impleaded as respondents. It applied the later decision in Ratan Lal Shah v. Firm Lalmandas Chhadammalal, where an appeal by one joint decree-holder was held maintainable under Order 41 Rule 4 even though the respondent joint decree-holder had not been served. The Court held that the appellate court's power to vary or modify a decree in favour of all joint decree-holders on a common ground is not lost merely because a jointly interested person has been made a party respondent and on his death heirs have not been brought on record. Additionally, the Court noted that Mahabir Prasad was one of the heirs of Saroj Devi and was already on record in another capacity; merely failing to describe him formally as heir and legal representative, or failing to implead other heirs within limitation, would not cause abatement. Accordingly, the Supreme Court allowed the appeal, set aside the High Court's order, and remanded the proceeding to the High Court for disposal according to law, with costs.
Headnote
A) Civil Procedure - Appeal by One of Several Joint Decree-Holders - Order 41 Rule 4, Code of Civil Procedure, 1908 - Appellate court may reverse or vary decree in favour of all joint decree-holders if decree proceeds on ground common to all and one of them appeals; power extends when others are not impleaded or are impleaded as respondents; death of respondent joint decree-holder with non-substitution of heirs does not abate entire appeal - Held High Court erred in dismissing appeal as abated because power under Order 41 Rule 4 was not lost merely because jointly interested person was made respondent and heirs not brought on record (Paras 3-6). B) Civil Procedure - Abatement and Legal Representative Already on Record - Order 22 Rule 3, Code of Civil Procedure, 1908 and Limitation Act, 1963 - Where a party dies and one legal representative is already on record in another capacity, it is sufficient to describe him by appropriate application; failure to implead other heirs within limitation does not abate proceeding - Held alternative ground also invalidated High Court's order; appeal allowed and proceeding remanded (Paras 6-7). C) Civil Procedure - Precedent - Distinction between Rameshwar Prasad and Ratan Lal Shah - Rameshwar Prasad v. Shyam Beharilal, [1964] 3 S.C.R. 549 distinguished; Ratan Lal Shah v. Lalmandas Chhadammalal, [1970] 1 S.C.R. 296 applied - In Rameshwar all joint plaintiffs appealed and one died, so Order 41 Rule 4 not applicable; in present case only one joint decree-holder appealed and others were respondents; Ratan Lal held appeal maintainable despite non-service of respondent, which is analogous to death - Held High Court's reliance on Rameshwar Prasad was misplaced (Paras 4-5).
Issue of Consideration
Whether an appeal filed by one of several joint decree-holders under Order 41 Rule 4 Code of Civil Procedure, 1908 abates in its entirety when a co-decree-holder impleaded as respondent dies and legal representatives are not brought on record within limitation.
Final Decision
Appeal allowed; order of High Court set aside; proceeding remanded to High Court for disposal according to law; defendants to pay costs of appeal; costs in High Court to be costs in the appeal.
Law Points
- Power of appellate court under Order 41 Rule 4 CPC to vary or modify decree arises when one of several persons against whom common decree made appeals
- even if others are respondents
- death of respondent joint decree-holder and non-substitution of heirs does not abate entire appeal
- if legal representative already on record in another capacity
- no abatement even if other heirs not impleaded within limitation.
