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PETITIONER: BIBIJAN & ORS.

       Vs.

RESPONDENT: MURLIDHAR & ORS.

DATE OF JUDGMENT15/11/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 SCC  (1) 187        JT 1995 (1)   141  1994 SCALE  (4)1043

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.      This  appeal arises from the judgment  of  the  High Court of Bombay at Aurangabad in S.A. No. 719 of 1970  dated February 21, 1979. The respondent had filed  the  suit   for redemption  of unufructuary mortgage dated 15th Awarded 1321 Fasli,  1912 A.D., hypothicated for a sum of Rs. 9200/-  OS. by their predecessors-in-interest. The trial court dismissed the  suit as being barred by limitation. On appeal,  it  was confirmed.  The High Court in second appeal, held  that  the mortgagee  acknowledged  the mortgage and  that,  therefore, limitation   starts   running   from   the   date   of   the acknowledgment by the respondents’  predecessors-in-interest which would give fresh cause of action for filing a suit for redemption  and  possession.  Indisputably,  the  gift  deed executed  by  the donor in favour  of  the  respondent-donee clearly  mentioned the mortgage and made a part of the  deed of  gift.  Thus,  the finding of the  High  Court  that  the recitals  in  the  gift deed  constitute  acknowledgment  is perfectly legal. Accordingly, the finding that the  suit was within  limitation,  is unassailable.  Thereby a preliminary decree for redemption was granted giving appropriate time to the  mortgagor to deposit the amount in the court by  decree dated April 29, 1979. Thus this appeal by special leave. 2.     Pending the appeal, the appellant No. 1 died in July, 1984  and the appellant No. 5 died in the year 1987.  It  is also  reported that respondent No. 1 died in the  year  1983 and  application for substitution was pending.  Substitution is allowed. 3.      Admittedly,  no steps have been taken to  bring  the legal  representatives of appellant Nos. 1 and 5 on  record. By  operation  of Order XXII, Rule 4 read with  Rule  11  of Civil  Procedure  Code, when one of two or  more  defendants died  and  the  right to sue does not  survive  against  the surviving defendant or defendants alone, or a sole defendant or  sole  surviving  defendant dies and  the  right  to  sue

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survives, the Court, on an application made in that  behalf, shall  cause  the  legal  representative  of  the   deceased defendant  to  be made a party and shall  proceed  with  the suit. Rule 11 postulates the applicability of this Order  to appeals. As far as may be the word ’plaintiff should be held to include an appellant, the word ’defendant’ a  respondent, and the word ’suit’ and 142 appeal.   Thus  at  the  appellate  stage  also  the   legal representatives  of the deceased respective  appellants  and the  respondents  should be substituted as the LRs.  of  the respective appellants/respondents. Article 120 of the  Third division  of  the  Schedule  to  the  Limitation  Act,  1963 provides  90  days from the date of death as the  period  of limitation   to  have  the  Legal  Representatives  of   the plaintiff-appellant,  defendant respondent, as the case  may be,  to be brought on record. After the expiry of  90  days, the appeal stands abated unless the appeal survives  against the  surviving appellants.  Within 60 days after the  expiry of  90 days, under Art. 121, the abatement needs to  be  set aside.  Since, admittedly, no applications had been made  to bring  on record the legal representatives of  the  deceased appellant No. 1 and 5 from the respective dates, before  the expiry  of 90 days, their appeal stood abated. The  question is whether the appeal of other appellants also abates.    It the  joint and inseverable decree of redemption  granted  in favour  of respondents, which was questioned in the  appeal. When that decree of redemption against appellants No. 1  and 5  had come to stand because of abatement of  their  appeal, that  decree of redemption against appellants 2 to  4  alone cannot be set aside, for in that event decree of  redemption made against appellants 1 & 5 questioned in the appeal would stand while the decree against appellants 2 & 4 alone  calls to be set aside. Since the decree for redemption being joint and  inseverable,  the appeal cannot be continued.  In  this view  of the matter, the entire appeal stands  abated.   The appeal is accordingly dismissed. No costs. 143