Case Note & Summary
The case involves a second appeal arising from a partition suit. The original plaintiff, Dwarkabai, obtained a decree for partition from the trial court, which granted her an 8/35th share. The appellate court enhanced her share to 12/35th. The appellant, Rajaram Bandu Jadhav, filed a second appeal challenging the decree. However, during the pendency of the appeal, the original plaintiff (respondent no.1) died, and the appeal abated against her as per the Additional Registrar's order dated 3-3-2004 and court order dated 26-10-2004. The court noted that since the appeal had abated against the decree holder, it could not be continued against the remaining respondents. Consequently, the second appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Abatement of Appeal - Partition Suit - Order 22 CPC - Where a second appeal abates against the original plaintiff in whose favour a decree for partition has been passed, the appeal cannot be continued against the remaining respondents. The court held that since the appeal stood abated against the decree holder, the appeal was dismissed as a whole. (Paras 1-2)
Issue of Consideration
Whether a second appeal can be continued against remaining respondents when it has abated against the original plaintiff/decree holder.
Final Decision
The second appeal is dismissed. No order as to costs.
Law Points
- Abatement of appeal
- Partition suit
- Inability to continue appeal against remaining respondents when appeal abates against decree holder
Case Details
2005 LawText (BOM) (02) 319
Second Appeal No.304 of 1989
Dwarkabai w/o Bandu Jadhav (abated), Shantabai w/o Rajaram Pawar, Taibai w/o Pandurang Mahadik (dismissed as abated), Kamlabai w/o Shankar Pawar, Vishnu Bandu Jadhav, Ranjana w/o Baban Jadhav, Registrar, Co Op Societies Maharashtra State, Pune-1
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Nature of Litigation
Second appeal in a partition suit.
Remedy Sought
Appellant sought to challenge the decree of partition passed in favour of the original plaintiff.
Filing Reason
Appellant was aggrieved by the appellate court's decision granting 12/35th share to the original plaintiff.
Previous Decisions
Trial court granted 8/35th share to original plaintiff; appellate court enhanced it to 12/35th share.
Issues
Whether the second appeal can be continued against remaining respondents after it has abated against the original plaintiff/decree holder.
Submissions/Arguments
None present for the appellants.
Ratio Decidendi
When a second appeal abates against the original plaintiff in whose favour a decree for partition has been passed, the appeal cannot be continued against the remaining respondents.
Judgment Excerpts
As appeal stand abated as against Respondent no.1, (original plaintiff no.1) in whose favour decree has been passed by the courts below, the appeal cannot be continued against rest of the Respondents.
Hence the appeal is dismissed. No order as to costs.
Procedural History
The original plaintiff filed a partition suit. Trial court decreed 8/35th share. Appellate court enhanced share to 12/35th. Appellant filed second appeal. During pendency, original plaintiff died and appeal abated against her. The second appeal was dismissed as abated against the decree holder and could not be continued against remaining respondents.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22
