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PETITIONER: JAYARAMA REDDY & ANR.

       Vs.

RESPONDENT: REVENUE DIVISIONAL OFFICER & LAND ACQUISITION OFFICER,KURNOO

DATE OF JUDGMENT23/03/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. DESAI, D.A.

CITATION:  1979 AIR 1393            1979 SCR  (3) 599  1979 SCC  (3) 578

ACT:      Code of Civil Procedure, 1908-Order XXII r. 4-Scope of- Cross appeals-Legal  representatives of  deceased  appellant brought on  record-Appellant in cross-appeal failed to bring them on  record of  cross appeal-Cross  appeal-If  abates-No objection raised before the High Court-If could be raised in further appeal.

HEADNOTE:      Order XXII  Rule 4  (1) CPC  provides that where one of two or  more defendants  dies and  the right to sue does not survive against the surviving defendant or defendants alone, 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. Sub-rule (3) of the Rule provides that where, within the time limited by law,  no application  is made under sub-rule (1) the suit shall abate as against the deceased defendant.      The land  in dispute,  which belonged to three persons, was acquired  by the  State Government  for a public purpose and the  market value  was fixed at Rs. 2/- per square yard. On appeal  by the  claimants, it  was raised  to Rs. 12/-per square yard.  Against the  order of  Subordinate Judge, both the State  and the  claimants filed  appeals before the High Court.      While the  appeals were  pending before the High Court, one of  the claimants died. The legal representatives of the deceased claimant  were brought  on record in the claimant’s appeal, but  the Government took no steps to bring the legal representatives of  the deceased  claimant on  record in the appeal filed by it.      Dismissing  the  claimant’s  appeal  and  allowing  the Government appeal  the High  Court reduced  the price of the acquired land to Rs. 4/- per square yard.      In appeal  before this  Court the  claimants  contended that  since   the  legal  representatives  of  the  deceased claimant were  not brought  on record  within the  period of limitation,  the   Government  appeal   abated   and   stood dismissed.      Dismissing the appeal, ^      HELD: (per  Shinghal, J.)  1. It  is not correct to say

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that the  Government  appeal  stood  dismissed  against  the surviving respondents because the Government failed to bring the legal representatives of the deceased claimant on record within the  specified time  limit. The  question whether the right to  sue survived  against  the  surviving  respondents alone, was  a matter  for the appellate court to examine and decide after hearing the parties with regard to the question of jointness  or otherwise  of the  decree and  the  further question  whether   there  was   any  possibility   of   two contradictory decrees. [605 F-G] 600      2. There  is no justification for the argument that the High Court’s  decree was  a nullity  because it  was  passed against a  dead person.  A decree against a dead person is a nullity because  it cannot be allowed to operate against his legal representatives  when they  were never  brought on the record to  defend the  case. It is held a nullity because it cannot be executed against his legal representatives who had not had  the full  opportunity of  being heard in respect of it. If  the respondent  to an  appeal dies and the appellate court loses sight of that development or ignores it, it will still be  permissible for  the court  hearing the  appeal to bring  his   legal  representatives  on  the  record  on  an application to  that effect  and to consider any application for  condonation   of  delay.  It  is  permissible  for  the appellate court to remand the case for disposal according to law to  the court in which it was pending at the time of the death of the deceased party. [606 B-D]      3. While  the law  treats such  decree as a nullity qua the  legal  representative  of  the  deceased  defendant  or respondent, there  is nothing  to prevent  him from deciding that he  would not  treat the  decree as a nullity but would abide by  it as it stood or as it may be modified on appeal. If a legal representative adopts that alternative, it cannot be said  that his  option to  be governed  by the  decree is against the  law or  any concept  of public policy or public morality. It  is a  matter entirely at the discretion of the legal representative  to decide  whether he  would raise the question that  the decree  had  become  a  nullity,  at  the appropriate time,  or to  abandon that  obviously  technical objection and fight the appeal on the merits. [606 F-H]      4. Nor  can it  be said  that the  appellate  court  is denuded of  its jurisdiction  to hear an appeal in which one of the  respondents had  died and  the right  to sue did not survive against  the surviving defendant or defendants alone merely because  no application  had been  made to  bring his legal representative  on the record when no objection to the effect was raised by any one of them. [607 B]      5. At the same time, an inference as to the abandonment of such  plea of  abatement cannot  be drawn unless there is clear, sufficient  and satisfactory  evidence to  prove that the legal  representative of  the  deceased  respondent  was aware of it and abandoned it wilfully. [607 D]      In the  instant case,  on the death of one of the three claimants the  other two  surviving  claimants  brought  the legal representatives  of the  deceased on  the record. They knew that the legal representatives of the deceased claimant had not  been brought on the record of the Government appeal within the  time prescribed  by law and that, therefore, the appeal stood  abated. Even  so, they  made no application to the High  Court seeking  dismissal of the Government appeal. This position  continued for  as long  as  five  years.  Two courses were  open to  the claimants  : (i) to move the High Court for the dismissal of the Government appeal, or (ii) to allow that  appeal to  be heard  and decided  on merits. The

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claimants chose  the second course. When the appeals came up for hearing  before the High Court, the appeal was argued on merits without raising an objection on this point. After the High Court  had pronounced  its judgment,  the claimants had asked for  a certificate  for leave to appeal without asking for a  review of  its judgment  on the ground that the legal representatives were  not  brought  on  the  record  of  the Government appeal.  So a point of defence which was wilfully and deliberately abandoned by a party in a civil 601 case at  a crucial  stage, cannot  be allowed to be taken up later at the will of the party which had abandoned the point or as a last resort, or as an after thought.           Gaekwar Baroda State Railway v. Hafiz Habib-ul-Haq      & Ors.,  65 Indian  Appeals 182:  Thakore Saheb  Khanji      Kashari Khanji  v. Gulam Rosul Chandbhai, AIR 1955 Bom.      449; Punjab  State v.  Sardar Atma Singh, AIR 1963 Pub.      113, State  of Rajasthan  & Ors. v. Raghuraj Singh, AIR      1968 Raj. 14; held inapplicable.      6. The  High Court had rightly taken into consideration all factors necessary for coming to the right conclusion for fixing the  rate of  compensation payable  to  the  climants namely that  a few months before the date of acquisition the climants themselves purchased the land at Rs. 2/- per square yard, that  they did  not make  any improvements  after  its purehase and  that the previous owners had not sold the land for any compelling reason. [611 B-D]      Desai,  J.   (concurring)  1.   The   basic   principle underlying o.  XXII rr.  3 and  4 CPC  is a facet of natural justice. It  is a fundamental rule of natural justice that a man has  a right  to be heard where a decision affecting him or his  interest is  to be  recorded. As  a corollary to the rule of  audi altrem  partem it  is provided  in the Code of Civil Procedure  that where  a party  to a  proceeding  dies pending the proceeding and the cause of action survives, the legal  representatives  of  the  deceased  party  should  be brought  on   record,   which   means.   that   such   legal representative must  be afforded  an  opportunity  of  being heard before any liability is fastened on them. Although the legal representatives  of a  deceased plaintiff or defendant must be  substituted on the pain of the action abating, with utmost diligence, from a multitude someone may escape notice and the  consequent hardship in abatement of action led this Court  to   assert  the  principle  that  where  some  legal representatives  were   brought  on   record  permitting  an inference that  the estate  was adequately  represented, the action would  not abate  though it  would be the duty of the other side  to bring  on record  even at  a later date those legal representatives who were overlooked or missed. [614 E- H]      2. The principle deducible from decisions of this Court is that  if the  deceased had,  as a  party, a  right to put forth his case, those likely to be affected by the decision, on death  of the  deceased, had  the same opportunity to put forth their  case and  even if  from a  large number  having identical interest  some are not brought on record those who are brought  on record  would adequately  take care of their interest and  the cause,  in the absence of some such, would not abate. [615 F-G]           Daya Ram  & Ors.  v. Shyam  Sundari, [1965]  1 SCR      231; N. K. Mohammad Sulaiman v. N. C. Mohammad Ismail &      Ors, [1966]  1 SCR  937; Harihar Prasad Singh & Ors. v.      Balmiki Prasad Singh & Ors., [1975] 2 SCR 932; referred      to.      3.  Yet   another  principle   is  that  if  the  legal

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representatives of  the deceased party were before the court in the  same action  even if in another capacity, failure to bring them  on record in a specific legal position would not result in abatement of the action. [615 H]      Mahabir Prasad  v. Jage  Ram &  Ors. [1971]  3 SCR 301;      referred to. 602      4. Where  a. decree  partly satisfies  each of  the two parties in  a  suit,  both  parties  may  prefer  an  appeal challenging only that part of the decree by which each party is dissatisfied.  But where  one of  the two parties appeals and  a  noticd  of  appeal  is  served  on  the  other,  the respondents receiving the notice may prefer cross-objections under O.  XLI, r.  22  CPC.  In  such  a  case,  though  the respondent may  not have  appealed  from  any  part  of  the decree, he  may take cross objections to the decree which he could have  taken by way of appeal. The parameters of cross- objections  are   limited  to  the  contention  which  could properly be taken in an appeal against a decree or part of a decree. [617 B-D]      5. When  legal representatives  of a deceased appellant are substituted  and those  very  legal  representatives  as legal representatives  of  the  same  person  occupying  the position of  respondent in cross-appeal are not substituted, its outcome  would be  that  they  were  on  record  in  the connected proceeding  before the same court hearing both the matters, in  one capacity  though they were lot described as such in  their capacity, namely, as legal representatives of the deceased  respondent. To  ignore this  obvious  position would  be  giving  undue  importance  to  form  rather  than substance. The  anxiety of the court should be whether those likely to be affected by the decision in the proceeding were before the  court having  full opportunity  to canvass their case. Once  that is  satisfied  it  can  be  said  that  the provisions contained  in rr. 3 and 4 of O.XXII are satisfied in a  given case.  To take  another view would be to give an opportunity to the legal representatives of a deceased party in an  appeal having  had the fullest opportunity to canvass their case  through the advocate of teir choice appearing in cross-appeals for  them and  having canvassed their case and lost, to  turn round  and contend  that they were not before the court as legal representatives of the same person in his other capacity,  namely, respondent  in the cross-appeal. In other words,  those legal  representatives were  before  the court all throughout the hearing of the appeal as parties to the appeal  and canvassed  their case and were heard through their advocates  and they  had the  full opportunity  to put forth whatever  contentions were open to them in the appeals and to  contest the contentions advanced against them by the opposite side  and yet  if the  other view  is taken that as they were not formally impleaded as legal representatives of the deceased  respondent in the cross-appeal that appeal has abated, it  would be  wholly unjust. It is very difficult to distinguish on  principle  the  approach  of  the  court  in appeals and  cross-objections and  in cross-appeals  in this behalf. The  cases which  have taken the view that in cross- appeals the position is different from the one in appeal and cross-objections do  not proceed  on any  discernible  legal principle. Nor  can they  be explained  by any  demonstrable legal  principle  but  in  fact  they  run  counter  to  the established legal principle. [623 G-H; 624 A-C]           Brij Inder  Singh v.  Lala Kanshi  Ram &  Ors. AIR      1917 PC  156; Rangubai Kom Shanker Jagtap v. Sunderabai      Bhratar Sakharam Jedhe & Ors., [1965] 3 SCR 211 at 216-      217; applied.

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         Sankaranaraina Saralya v. Laxmi Hengsu & Ors., AIR      1931 Mad.  277; State  of Rajasthan  & Ors, v. Raghuraj      Singh, AIR 1968 Raj. 14; not approved.      In the  instant case  the legal  representatives of the deceased  claimant   were  brought  on  the  record  of  the claimant’s appeal.  Both the  appeals were  heard  together. Their counsel  argued their case in both appeals. Therefore, they were 603 before the  court all  through. The  fact that  they had not been described  as legal  representatives of the deceased in the Government  appeal could  not make  any  difference  and their appeal has not abated.      On the  question of  compensation no case had been made out for interfering with the view of the High Court.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2314 of 1969.      From the  Judgment and  Decree dated  4-2-1969  of  the Andhra Pradesh High Court in Appeal No. 180/64.      A. K. Sen and A. Subba Rao for the Appellant.      T. V. S. N. Chari for the Respondent.      The following Judgments were delivered:      SHINGHAL, J.-This  appeal is  by a  certificate of  the High Court of Andhra Pradesh on the valuation of the subject matter and  is directed  against its judgment dated February 4, 1969.      The State  Government acquired  2 acres and 79 cents of the land  of the  appellants in Kurnool town, for locating a bus depot of the Andhra Pradesh State Transport Corporation. It was  arable land within the municipal limits of the town, with two  trees and an old compound wall. Its possession was taken by  the State  Government on  May 25, 1962. The market value of  the land was fixed at Rs. 27,042.53 at the rate of Rs. 2/-  per square  yard. The  compound wall  and the trees were valued at Rs. 930/- and after allowing a solatium of 15 per cent  and interest  at 4  per cent  per annum, the total compensation was  worked out  to Rs.  33,069.12. N. Jayarama Reddy, Y. Prabhakar Reddy and C. Manikya Reddy, who were the three owners  of the  land, accepted that compensation under protest and  applied for a reference under section 18 of the Land  Acquisition   Act.  After   recording   evidence   and inspecting the  site, the  Subordinate Judge  held that  the claimants were  entitled to  payment at the rate of Rs. 12/- per square  yard for the value of land, a solatium of 15 per cent and interest at 4 per cent. Both parties felt aggrieved against that  order dated July 30, 1963. While appeal No. AS 180 of  1964, hereinafter  referred  to  as  the  government appeal, was  filed by the Revenue Divisional Officer and the Land Acquisition  Officer, Kurnool,  appeal No.  AS  296  of 1964, hereinafter  referred to as the claimants’ appeal, was filed by the claimants. There were thus cross-appeals in the High Court  against a common order of the Subordinate Judge. The  memorandum  of  the  government  appeal  was  filed  on December 7, 1963. I do not 604 have the date of the claimants’ appeal on the record, but it is not  disputed that  it was  filed before  April 3,  1964. While the  two appeals  were pending  in the  High Court, Y. Prabhakar  Reddy,   one  of   the  three  claimants  of  the compensation for  the acquired  land, died on April 3, 1964. An application  was made  in the  claimants’ appeal to bring

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his legal  representatives on the record, and the High Court passed an  order on  July 14,  1964 (in  C.M.P. No.  7284 of 1964) bringing  appellants 4  to 9  on record  as the  legal representatives of Y. Prabhakar Reddy. It is admitted before me that  was done  before the  abatement of  that appeal. It seems that  no application was made in the government appeal to  bring   the  legal   representatives  of   the  deceased respondent Y.  Prabhakar Reddy on the record of that appeal. Both  the  appeals  were,  however,  taken  up  for  hearing together and  were disposed  of by  a common judgment of the High Court  dated February 4, 1969. The High Court dismissed the claimants’ appeal, but allowed the government appeal and reduced the  price of the acquired land from Rs. 12/- to Rs. 4/- per square yard "with the usual solatium and interest at 4 per  cent as  allowed  by  the  lower  court."  While  the government felt  satisfied with that judgment, the claimants applied for  a certificate  which was  granted on the ground that the  value of  the subject  matter of  the suit  in the court of  first instance was upwards of Rs. 20,000/- and the value of  the subject  matter in  dispute on  appeal to this Court was  also  upwards  of  that  amount  and  the  decree appealed from  did not  affirm the  decision  of  the  lower court. On  the strength  of that  certificate the appellants have come up to this Court in appeal.      It has  been  argued  by  Mr.  Sen  on  behalf  of  the appellants that  as Y.  Prabhakar Reddy, respondent No. 2 in the government  appeal died  on April 3, 1964, and his legal representatives were  not brought  on the  record within the period of  90 days  provided  by  law,  that  appeal  abated thereafter and  stood dismissed  automatically and could not be resurrected and heard by the High Court as a cross-appeal to the  claimants’ appeal.  The learned  counsel has  placed reliance on  the decisions  of this  Court in  The State  of Punjab v.  Nathu Ram,(1)  Rameshwar Prasad and others v. M/s Shyam Beharilal  Jagannath  and  others,(2)  Ramagya  Prasad Gupta and others v. Murli Prasad(3) and Harihar Prasad Singh and others v. Balmiki Prasad Singh and others.(4) to support his argument. In particular, he has placed 605 reliance on Nathu Ram’s case(1) to fortify his argument that the specification  of the  shares or  of the interest of the deceased Y. Prabhakar Reddy did not affect the nature of the decree and  the capacity  of the  joint  decree  holders  to execute the  entire decree  or to  resist the attempt of the other party  to interfere  with the  joint right  decreed in their favour.  In particular,  he has relied on that portion of that  decision where  it has  been  stated  that  as  the subject  matter   for  which   the  compensation  is  to  be calculated in  such cases  is one and the same, there cannot be different  assessments of the amounts of compensation for the same  parcel of  land. So, as the appeal before the High Court  was   directed  against  the  joint  decree  and  the appellate court  could not  take a  decision on the basis of the separate  shares of  the claimants,  it has  been argued that the  whole of  the government  appeal should  have been dismissed because  of its  abatement  against  the  deceased respondent.      Now what  Order XXII  r. 4  (1) C.P.C. provides is that where one  of two  or more  defendants dies and the right to sue does  not survive  against the  surviving  defendant  or defendants alone,  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. Sub-rule  (3) provides  further that  where within the time limited  by law  no application  is made under sub-rule

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(1),  "the   suit  shall   abate  as  against  the  deceased defendant." So  as Y.  Prabhakar Reddy,  respondent No. 2 in the government  appeal,  died  on  April  3,  1964,  and  an application was  not made to bring his legal representatives on the  record within  the specified  time limit, the appeal automatically abated as against the deceased respondent, and it is not correct to say that the appeal automatically stood dismissed against  the surviving respondents because of that default. The  question whether  the "right  to sue" survived against the  surviving respondents  alone, was  a matter for the appellate  court to examine and decide after hearing the parties, with  due regard  to the  question of  jointness or otherwise of  the decree  and the  further question  whether there was  any possibility of two contradictory decrees etc. As that  was not done by the High Court where the government appeal was  pending,  there  is  no  justification  for  the argument that the appeal automatically stood dismissed after the expiry  of the  period of  90 days  from  the  death  of respondent Y.  Prabhakar Reddy  on April  3, 1964 because of the abatement of the appeal against him.      But even  if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the 606 deceased respondent, there is no justification for Mr. Sen’s further argument that the High Court’s decree dated February 4, 1969,  was a nullity merely because it was passed against a dead  person, namely,  Y. Prabhakar  Reddy. It  has to  be appreciated that  a decree  against a  dead  person  is  not necessarily  a   nullity  for   all  purposes.  It  will  be sufficient to  say that  such a decree has been held to be a nullity because  it cannot  be executed  against  his  legal representative for  the simple reason that he did not have a full opportunity  of being  heard in  respect of it, and the legal representative  can not  be condemned unheard. So if a respondent to  an appeal dies, and the appeal abates because of the  failure to  bring his  legal representative  on  the record within  the time  limited by  law, and  the appellate court loses sight of that development or ignores it, it will still be  permissible for  the court  hearing the  appeal to bring  his   legal  representative   on  the  record  on  an application to  that effect  and to  examine any application that may  be made  for condonation  of the delay. It is also permissible, and  is in  fact the common practice, to remand the case for disposal according to law to the court in which it was  pending at  the time  of the  death of  the deceased party. The  law has  therefore provided, and accepted, modes for reopening and hearing the appeal in such cases.      The basic  fact remains  that a  decree against  a dead person is  treated as a nullity because it cannot be allowed to operate  against his  legal representative  when  he  was never brought  on the  record to  defend the case. Any other view would  not be  possible or  permissible  for  it  would fasten on  him a  liability for  which he  did not  have any hearing. So  while the  law treat such a decree as a nullity qua the  legal representative  of the  deceased defendant or respondent, there  is nothing  to prevent  him from deciding that he  will not  treat the  decree as  a nullity, but will abide by  it  as  it  stands,  or  as  it  may  be  modilied thereafter on  appeal. If a legal representative adopts that alternative or  course of action, it cannot possibly be said that his  option to be governed by the decree is against the law or  any concept  of public  policy or  purpose,  or  the public morality.  It  is  thus  a  matter  entirely  at  the discretion  of   the  legal  representative  of  a  deceased

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respondent against  whom a  decree has been passed after his death to  decide whether he will raise the question that the decree has  become a  nullity, at  appropriate time, namely, during the  corse of  the hearing of any appeal may be filed by the  other party,  or to  abandon that  obvious technical objection and  fight the appeal on the merits. He may do so, either because  of his  faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that  he may  not like  to rely  on a  mere technical plea, or because in the case of 607 cross-appeals, he  may have the impression that bringing the legal representative of the deceased respondent on record in an appeal  by a coappellant will enure for the benefit of or be  sufficient   for  purposes   of  the   cross-appeal.  An abandonment  of  a  technical  plea  of  abatement  and  the consequential dismissal of the appeal, is therefore a matter at  the  discretion  of  the  legal  representative  of  the deceased respondent  and there  is no  justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in  which one  of the  respondents has  died and  the right  to   sue  does  not  survive  against  the  surviving defendant or  defendants alone merely because no application has been  made to  bring his  legal  representative  on  the record when  no objection  to that  effect is  raised by any one.      But, as is equally obvious, it will not be fair to draw an inference  as to  the  abandonment  of  such  a  plea  of abatement unless there is clear, sufficient and satisfactory evidence to  prove that  the  legal  representative  of  the deceased  respondent  was  aware  of  it  and  abandoned  it wilfully. The  following facts have been well established in this respect in the present case.      It will be recalled that the Subordinate Judge made his order  in  the  reference  under  section  18  of  the  Land Acquisition Act  on July 30, 1963, and the memorandum of the government appeal was filed in the High Court on December 7, 1963. The  claimants filed  their cross-appeal No. AS 296 of 1964 soon  after and,  at any rate, before April 3, 1964. It will also be re-called that Y. Prabhakar Reddy died on April 3, 1964.  While he  was respondent  No. 2  in the government appeal, he  was a  co-appellant in the claimants’ appeal. As has been  stated, the claimants brought Y. Prabhakar Reddy’s legal representatives on the record in their appeal under an order of  the High  Court dated July 14, 1964, and they were arrayed as  appellants Nos. 4 to 9. It is admitted that that appeal therefore  never abated  and the array of the parties was full  and complete.  As has  been pointed out, the legal representatives of  Y. Prabhakar  Reddy were  not brought on record in  the  government  appeal.  It  cannot  be  denied, however, that  they knew  of Y.  Prabhakar Reddy’s  death on April 3,  1964, for  he was  their ancestor.  They also knew that  they   had  been   brought  on  record  as  his  legal representatives in the claimants’ appeal because of the High Court’s specific order to that effect dated July 14, 1964 in C.M.P. No.  7282 of  1964 where  they  were  represented  by counsel. They  thus knew  that Y.  Prabhakar  Reddy’s  legal representatives were not brought on record in the government appeal, and that it stood abated against them because of the expiry of the time limited by law 608 in that  respect. Even  so, they did not make an application to the  High Court  for the  dismissal of  the appeal on the ground that  it could  not  survive  against  the  surviving

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respondents because  of that  basie defect, in the facts and circumstances of that case. That in fact continued to be the position for  a long  period of  some five  years. It is not disputed that  the appeals  came up  for hearing in the High Court on  or about  February 4,  1969, but,  even then,  no- objection was  taken to the hearing of the government appeal in spite  of the  fatal defect  in its  consitution. On  the other hand,  when the two appeals were taken up for hearing, the High  Court heard,  without any  objection, not only the counsel for  the appellants  in the  government appeal,  but also  C.   Padmanabha  Reddy,   who  was   counsel  for  the respondents in  that appeal  and for the reconstituted array of  appellants   in  the   claimants’  appeal.   The   legal representatives of Y. Prabhakar Reddy and their counsel were thus aware of the fact that the government appeal had abated against respondent  Y. Prabhakar  Reddy, and  it will not be unfair to  assume that  they, or, at any rate, their counsel knew that  it was  open for  them to contend that the appeal was liable  to dismissal  for that  reason. Two  courses  of action were  therefore open  to them:  (i) to  move the High Court for the dismissal of the government appeal, or (ii) to allow that  appeal to be heard and decided on the merits and to abide  by any  decree which  the High Court might pass in the two appeals. The legal representatives and their counsel did not  choose to  adopt the first course of action, and it will be fair and reasonable to hold that they wilfully chose the second  course of  action. That was why their counsel C. Padmanabha Reddy, who was counsel for all the respondents in the government  appeal, and  for all  the appellants  in the claimants’ appeal,  argued both  the appeals  on the merits. The High  Court heard  and decid  the cross-appeals  by  its impugned judgment  dated February  4, 1969, and it will be a proper  conclusion   for  me   to  reach   that  the   legal representatives of Y. Prabhakar Reddy wilfully abandoned any plea that  might have been available to them on the basis of the abatement  of the government appeal against the deceased respondent.      It was  only after  the judgment of the High Court went against them, that the legal representatives of Y. Prabhakar Reddy decided  to take up the question of abatement, for the first time,  in  the  petition  which  they  and  the  other claimants’ filed  under section 104-110 and order 45 rules 2 and 3  C.P.C. It  is significant that they did not even then ask the  High Court  to review  its judgment  and grant them relief on  the ground  that Y.  Prabhakar Reddy had died and the decree  against him was a nullity in so far as they were concerned. The High Court was 609 simply asked  to allow the application for the certification of the  appeal on  the ground  that the value of the subject matter was  upwards of  Rs. 20,000/- and it made an order to that effect.      In all  these facts  and circumstances, I have no doubt that any  plea that  may have  been available  to the  legal representatives of  the deceased  Y. Prabhakar  Reddy in the government appeal  because of  its abatement,  was  wilfully abandoned by  them. Any  other view  of the  matter will  be unfair to  the present  respondents,  because  if  any  such objection had  been taken in the High Court, they would have made an  application for  the setting aside of the abatement and condoning  the delay,  for whatever it was worth. It has to be  appreciated that  a point  of defence  which has been wilfully or  deliberately abandoned  by a  party in  a civil case, at  a crucial  stage when  it  was  most  relevant  or material, cannot  be allowed  to be  taken up  later, at the

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sweet will of the party which had abandoned the point, or as a last  resort, or  as an  after thought.  In fact in a case where a  point has  been wilfully abandoned by a party, even if, in  a given case, such a conclusion is arrived at on the basis of  his conduct,  it will  not be permissible to allow that party  to  revoke  the  abandonment  if  that  will  be disadvantageous to the other party.      Mr. Sen  has however made a reference to Gaekwar Baroda State  Railway  v.  Hafiz  Habib-ul-haq  and  others(1)  and Thakore Saheb Khanji Kashari Khanji v. Gulam Rasul Chandbhai (2) for  the purpose  of showing  that the government appeal was not at all maintainable in the High Court because of its abatement against  respondent Y. Prabhakar Reddy as that was a matter  relating to  the jurisdiction  of the  High  Court which could  not have  been  abandoned.  The  provisions  of section 86  C.P.C. came  up for  consideration in both those cases and  it was  held that  as the  section was based upon public policy  or purpose, it was not open to a ruling chief to waive  its provisions.  Those  were  therefore  different observations  which   have  no   bearing  on   the   present controversy for,  as has  been stated,  the decision  of the legal representative of a deceased respondent to be bound by a decree  in spite  of its  abatement does  not involve  any question of public policy.      Mr.  Sen’s  reference  to  Maharana  Shri  Davlatinghji Thjakore Saheb  of  Limit  v.  Khachar  Hamir  Mon,(3)  Town Municipal Council, Athani 610 v. Presiding  Officer, Labour  Court, Hubli  and others, (1) Simpson and another v. Crowle and others(2) Chief Justice of Andhra Pradesh  and another  v.  L.  V.  A.  Dikshitula  and others(3) and  P. Dasa  Muni Reddy  v.  P.  Appa  Rao(4)  is equally futile  because they  were cases of inherent lack of jurisdiction in  the court  concerned or raised the question of the bar of limitation.      Mr. Sen  has placed  reliance on Punjab State v. Sardar Atma Singh(5)  and State of Rajasthan and others v. Raghuraj Singh(6) to  show that  where an  application is not made to bring the legal representative of the deceased respondent on the record of a cross-appeal, that appeal will abate, and it will not  be permissible  for the  appellant  to  claim  the benefit of  the fact  that the  legal representative  of the deceased respondent  had been  brought on  the record in the cross-appeal filed  by him.  I have  gone through the cases, but they are clearly distinguishable. The respondent in both cases died  during the  pendency of  the firs appeal, and an objection as to abatement was taken during the course of the hearing, so  that there  was no  question of  abandoning the objection in either of these cases and it was permissible to apply to  the court  for the usual consequences which follow for non-compliance with the provisions of order XXII rules 3 and 4 C.P.C. Those decisions cannot therefore be of any help in a case like this.      It would  thus follow  that as the plea of abatement of the government  appeal against respondent Y. Prabhakar Reddy and its  dismissals a  whole for  that reason,  was wilfully abandoned by  the present  respondents in the High Court, it will not  be fair and reasonable to allow them to take it up the facts  and circumstances of this case merely because the decision of the High Court has gone against them.      That leaves  for consideration the question whether the finding  of   fact  of  the  High  Court  that  the  present appellants were  entitled to  compensation at  Rs.  4/-  per square yard  suffers from  any  such  error  as  to  require interference by this court. Mr. Sen has argued that the High

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Court went  wrong in  interfering with  the finding  of  the Subordinate Judge  and in  excluding the sale deeds Exs. A 1 and A  2 altogether  from    consideration  when  they  were important and  were by  themselves sufficient  to uphold the finding of  the Subordinate  Judge that  the market value of the land was Rs. 12/- per square yard. 611      I find  from the  impugned judgment that the High Court first took  into consideration  all those factors which were in favour  of the  claimants, namely, the fact that the land was situated within the municipal limits of Kurnool town, it was within  easy reach  of  the  government  hospitals,  the railway station,  the Medical  College and  the  State  Bank etc., it was suitable as a building site etc. The High Court also took  due notice  of the fact that although Kurnool was not made  the capital  of Andhra  Pradesh, it  was a growing town and  had an  importance of  its own.  It then  examined those facts  which persuaded  it to reduce the market value. In doing  so, it  took note  of the fact that the land under acquisition had  been bought by the Claimants themselves for Rs. 26,000/-  on October  30, 1961, just eight months before the issue of the notification for its acquisition. That rate worked out  to Rs.  2/- per square yard. Then the High Court took into  consideration the  other facts that the claimants did not  effect  any  improvement  in  the  land  after  its purchase, it  was not their case that the previous owner had sold it  for any  compelling reason,  the claimants were not even responsible  for preparing  the lay  out plan  for  the locality (which  had been  accepted by the municipality even before they  had purchased  the land)  and that  they merely obtained the sanction of the Town Planning department to the lay out  which had  already been  sanctioned. The High Court carefully examined  the various sale agreements Exs. A3, A5, A7, A10,  A12 and  A14, and rejected them on the ground that they did  not appear  to be  genuine  and  had  mostly  been executed on the same date. That left the two registered sale deeds Exs.  A1 and A2 for consideration on which Mr. Sen has placed considerable  reliance. The  High Court  noticed that they were  for the  sale of  very small  portions  of  land, namely, 3  cents and 5 cents, and did not think it proper to make them  the basis  for determining  the value  of  a  far larger piece  of land.  It cannot therefore be said that the High Court  ignored  or  misread  any  important  piece  for evidence in arriving at its finding. As has been stated, the appellants bought  the land  for Rs.  26,000/-, which worked out to  Rs. 2/-  per square yard, and the High Court doubled that rate,  and raised  it to  Rs. 4/-  per square yard even though the  acquisition took  place within  a matter  of the next eight  months and the appellants did nothing to improve its value.  To say  the least, such a finding cannot be said to have  been vitiated  for any  reason whatsoever  so as to require reconsideration here.      As I  find  no  merit  in  the  appeal,  it  is  hereby dismissed with no order as to costs.      DESAI, J.-I  have carefully  gone through  the judgment prepared by my learned brother Shinghal, J. and I am in full agreement with  him  that  the  appeal  be  dismissed.  This separate opinion becomes necessary be- 612 cause in  my opinion  in the facts and circumstances of this case the Government appeal had not abated at all.      All the relevant facts have been extensively set out by my learned  brother and  it is  not necessary to repeat them here. Even the nomenclature in respect of the two appeals as given by him may be adopted for facility of appreciating the

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point under discussion      After the  award by  the Subordinate Judge, two appeals came to  be preferred, one by the Revenue Divisional officer styled as  ’Government appeal’, and another by the claimants styled as ’claimants appeal’. Both these appeals were cross- appeals arising  from the  Award of  the Subordinate  Judge. During the  pendency of  the appeals  in the  High Court, Y. Prabhakar Reddy,  one  of  the  three  claimants,  being  an appellant  in   the  claimants’  appeal  and  respondent  in Government appeal,  died  on  April  3,  1964  and  upon  an application made  to the  Court in the claimants’ appeal his legal representatives appellants 4-9 were brought on record. Admittedly,  the   legal  representatives   of  deceased  Y. Prabhakar Reddy  one of the respondents in Government appeal were not  brought on  record  till  both  the  appeals  were disposed of  by  a  common  judgment  rendered  on  February 4,1969.  The  High  Court  by  its  judgment  dismissed  the claimants’ appeal  and partly  allowed the Government appeal reducing the compensation payable in respect of the acquired land from  Rs. 12/-  to Rs.  4/- per  sq. yd.  Original  two claimants and  heirs of deceased claimant Y. Prabhakar Reddy preferred the  present appeal  to this  Court by certificate granted  by   the  High  Court  under  Article  133  of  the Constitution.      Mr. A.  K. Sen  contended that  as heirs  of one of the claimants  Y.  Prabhakar  Reddy,  respondent  in  Government appeal, were  not brought  on record  within the  prescribed period of limitation after his death pending the appeal, not only the Government appeal abated against Y. Prabhakar Reddy but in view of the decision of this Court in State of Punjab v.  Nathu   Ram,(1)  the  appeal  abated  as  a  whole  and, therefore, the  judgment of  the High  Court partly allowing the Government appeal and reducing the compensation from Rs. 12/- to Rs. 4/- per sq. yd. of the acquired land must be set aside on this short ground alone.      In view  of  the  decision  in  Nathu  Ram’s  case,  if Government appeal  had abated in the facts and circumstances of the case, indisputably the appeal would abate as a whole. The substance  of the  matter is  whether in  the facts  and circumstances of  this case and keeping in view the relevant provisions of law the Government appeal had at all abated.      There were  cross appeals  arising from  the same Award before the  High Court.  The record  does not  show that any order was made for 613 consolidating these appeals as is usually done when both the parties to  a decree  prefer appeals and which are styled as cross-appeals. Both  the parties  to the original proceeding adopt rival  positions in  cross appeals.  The claimants  in their  appeal   moved  the   High  Court   to  enhance   the compensation from  Rs. 12/-  per  sq.  yd.  awarded  by  the Subordinate Judge to a higher amount as claimed by them. The Government in  its appeal  against the  same Award moved the High Court  to reduce  the compensation from Rs. 12/- to Rs. 2/- per  sq. yd.  The contest  between the parties would be, what in  the circumstances  of the  case should  be adequate compensation being  the market value of the land acquired by the Government on the relevant date (see Nathuram’s case).      Undoubtedly, one of the original claimants Y. Prabhakar Reddy being  one of  the appellants in the claimants’ appeal died and specifically his legal representatives were brought on record  within the  prescribed period  of limitation  and that was  done much  prior to  the date  of hearing  of  the appeals  by   the  High   Court.  As   is   notorious,   the inadvertence, if  not  down  right  indifference,  of  those

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incharge  of   the   Government   appeal   is   demonstrably established because  the counsel  incharge of the Government appeal must  have received the notice moved on behalf of the appellants-claimants   seeking    to   bring    the    legal representatives of deceased Y. Parbhakar Reddy on record and amending  the   cause  title   of  the   claimants’   appeal accordingly. This  was  sufficient  notice  to  the  counsel incharge of  the Government  appeal that  the same gentleman was one  of the  respondents in  Government appeal  and  his death having  been notified,  as a  necessary corollary  his heirs will  have to  be  brought  on  record  in  Government appeal. Nothing  more was required to be done by the counsel incharge of  Government appeal  except to bodily adopt those who applied  to come  on record  in  place  of  deceased  Y. Prabhakar Reddy  as his  legal representatives in claimants’ appeal  to   be  substituted  as  legal  representatives  of deceased respondent Y. Prabhakar Reddy in Government appeal. This was  not done.  It may  also be mentioned that both the appeals were heard together and were disposed of by a common judgment. As  has been  pointed  out  by  Shinghal,  J.,  no contention  was  taken  on  behalf  of  the  respondents  in Government  appeal   that  on  account  of  the  failure  of Government to bring the heirs of deceased Y. Prabhakar Reddy on record  within the time prescribed, the appeal has abated but on  the contrary  Government appeal  was allowed  to  be proceeded in  the presence  of all  parties including  legal representatives of Y. Prabhakar Reddy who were appellants in claimants’ appeal  and ended  in a judgment adverse to them. What is  the consequence of failure to raise this contention has been  examined by  my learned brother in detail and I am in agreement with his conclusion. 614      Now, Order  22, Rule  4 read  with Order 22, Rule 11 of the Code  of Civil  Procedure require  that the appellant in Government   appeal    should   have   brought   the   legal representatives of  respondent deceased  Y. Prabhakar Reddy, on record.  There is  no controversy that rule 4 of Order 22 read with  rule 11  would be  attracted in this case, and as admittedly  the   legal  representatives   of  deceased   Y. Prabhakar Reddy,  the respondent  in Government appeal, were not brought  on record  till the  appeal  was  disposed  of, ordinarily the appeal would abate.      The substantial  question is:  where cross  appeals are preferred against  a common  decree or  an Award  and in the cross appeals the parties are arrayed in rival positions and where  one   party  as   appellant  dies   and   his   legal representatives are  brought on  record  though  those  very legal representatives are not substituted in his place which he adopted  as respondent  in the  cross appeal,  would  the cross appeal abate ?      This question  may be  examined first on principle. The basic principle  underlying order 22, rules 3 and 4 which on account of  the provision  contained in  order 22,  rule  11 apply to appeals, is indisputably a facet of natural justice or a  limb of  audi altrem  partem rule. It is a fundamental rule of  natural justice that a man has a right to be heard- audi altrem  partem-where a  decision affecting  him or  his interest is to be recorded. It hurts one’s sense of justice, fairness and  reason that a decision one way or the other is recorded affecting  a party  without giving  that  party  an opportunity of  being heard.  This rule  embraces the  whole notion of fair procedure and the rule requiring a hearing is of almost  universal validity.  It has made a serious inroad in administrative  decisions. It should enjoy a top place in a judicial proceeding.

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    The first  limb of this rule audi altrem partem is that a person  must be given an opportunity of being heard before a decision  one way  or the other affecting him is recorded. As a  corollary to  this rule  it is provided in the Code of Civil Procedure  that where  a party  to the proceeding dies pending the proceeding and the cause of action survives, the legal  representatives  of  the  deceased  party  should  be brought  on   record  which   only  means  that  such  legal representatives must  be afforded  an opportunity  of  being heard before  any liability is fastened upon them. It may be that the  legal representatives  in a given situation may be personally liable  or the  estate of  the deceased  in their hands would  be liable and in either case a decision one way or the  other, adverse  or favourable  to  them,  cannot  be recorded unless  they are  given  an  opportunity  of  being heard. Order  22, rules  3 and  4  codify  these  procedural safeguards translating into statutory requirement one of the principles of natural justice. 615      If this  is the  discernible principle underlying order 22, rules  3 and  4 it  has been demonstrably established by interpretation put  on these  two rules.  Original view  was that all  legal representatives  of a  deceased plaintiff or defendant must  be substituted  on the  pain of  the  action abating. With utmost diligence from a multitude some one may escape notice  and the  consequent hardship  in abatement of action led  this Court  to assert  the principle  that where some legal  representatives are brought on record permitting an inference  that the estate is adequately represented, the action would  not abate  though it  would be the duty of the other side  to bring  those legal  representatives on record who are  overlooked or missed even at a later date. When the aforementioned two provisions speak of legal representatives it only  means that  if after diligent and bona fide enquiry the party  liable to  bring  the  legal  representatives  on record ascertains  who are  the legal  representatives of  a deceased party  and brings  them on  record within  the time limited by  law, there is no abatement of the suit or appeal on the ground that some other legal representatives have not been  brought   on  record,   because  the  impleaded  legal representatives sufficiently  represent the  estate  of  the deceased  and   the  decision  would  bind  not  only  those impleaded but  the entire  estate including  the interest of those not brought on record. This view has been consistently adopted by  this Court  in Daya  Ram & Ors. v. Shyam Sundari (1) N.  K. Mohammad  Sulaiman v.  N. C.  Mohammad  Ismail  & Ors.;(2) and  Harihar Prasad  Singh & Ors. v. Balmiki Prasad Singh & Ors.(3) The principle deducible from these decisions is that not only the interest of the deceased was adequately taken care  of by  those who were on record but they had the opportunity to  put  forth  their  case  within  permissible limits.  Neither  the  case  of  the  deceased  nor  of  his successors in-interest  has gone by default. In other words, the principle is that if thd deceased had as a party a right to put  forth his  case, those  likely to be affected by the decision on  death of  the deceased had the same opportunity to put  forth their  case and  even if  from a  large number having identical  interest some  are not  brought on  record those who  are brought  on record would adequately take care of their  interest and the cause in the absence of some such would not abate. In legal parlance this procedure affords an opportunity of  being heard in all its ramification before a decision on the pending list is taken.      Another  principle  in  this  behalf  which  has  found recognition  of   the  Courts   is   that   if   the   legal

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representatives of  the deceased  party are before the Court in the same action even if in another capacity, failure to 616 bring them  on record in a specific legal position would not result in abatement of the action. In Mahabir Prasad v. Jage Ram &  Ors.,(1) this  Court  was  called  upon  to  consider whether where  a legal representative of a deceased party is on record  in another  capacity, failure  to implead  him as legal representative  of the  deceased party would result in abatement of  the action  ? In that case Mahabir Prasad, his wife Saroj  Devi and  his mother  Gunwanti Devi filed a suit against Jaga Ram and two others for recovering rent then due in the aggregate amount of Rs. 61,750/-. The suit ended in a decree. The  execution of  the decree  was resisted  by  the defendants on  the plea  inter  alia  that  the  decree  was inexecutable because of the provisions of Delhi Land Reforms Act, 1954.  This contention  found favour with the executing court and  the  application  for  execution  was  dismissed. Mahabir Prasad,  one of  the decree  holders alone  appealed against that order and impleaded Gunwati Devi and Saroj Devi as party  respondents  along  with  the  original  judgment- debtors. Saroj Devi died in November 1962 and Mahabir Prasad applied that  the name  of Saroj  Devi be struck of from the array of  respondents. The High Court made an order granting the  application   "subject   to   all   just   exceptions". Subsequently the  High Court  dismissed the  appeal  holding that because  the heirs  and legal  representatives of Saroj Devi were  not  brought  on  record  within  the  period  of limitation, the  appeal abated  in its entirety. This Court, while setting aside the order made by the High Court holding that the appeal abated, observed as under:           "Even  on  the  alternative  ground  that  Mahabir      Prasad being  one of  the heirs of Saroj Devi there can      be no  abatement merely  because no  formal application      for  showing  Mahabir  Prasad  as  an  heir  and  legal      representative of  Saroj Devi  was  made.  Where  in  a      proceeding  a   party  dies   and  one   of  the  legal      representatives is  already on  the record  in  another      capacity, it  is  only  necessary  that  he  should  be      described by  an appropriate  application made  in that      behalf that  he is also on record, as an heir and legal      representative. Even if there are other heirs and legal      representatives and  no application for impleading them      is made  within the  period of limitation prescribed by      the Limitation Act the proceeding will not abate".      The principle  deducible from  this decision  of  their Court is  that where one of the legal representatives of the deceased party  is before  the Court  at the  time when  the proceeding  is   heard  but   in  another  capacity,  it  is immaterial whether  he is  described as such or not and even if there are other legal representatives, the cause will not abate. 617      Now, when  a proceeding such as a suit ends in a decree it may  be that  decree may  partly satisfy both the parties with the  result that  with regard to that part of decree by which each  party is  dissatisfied that  party may prefer an appeal challenging  only that part of the decree by which it is dissatisfied.  When one  such party to the decree appeals and a  notice of  the appeal is served on the other side the respondent receiving  the notice may prefer cross-objections under Order  41, Rule  22, but  what is important to note is that such  respondent though  he may  not have appealed from any part of the decree, may take any cross-objections to the decree which  he could have taken by way of appeal. In other

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words, the  respondent could  have as  well filed  an appeal against that  part of the decree by which he is dissatisfied but if  he has  not filed an appeal he can as well put forth cross-objections as  contemplated  by  Order  41,  rule  22. Parameters of  cross-objections by the language of Order 41, rule  22,   are  limited  to  the  contentions  which  could appropriately be  taken in  an appeal  against a decree or a part  of   a  decree.  For  all  practical  purposes  cross- objections  and  cross-appeals  have  the  same  purpose  to achieve and  cover the  same ground.  Would they  stand on a different footing  in respect  of death of a party either in cross-appeals or in cross-objections ?      There is  a conflict  of judicial opinion on the effect of substitution of legal representatives of a deceased party in cross-objections  and in  cross appeals.  Mulla has noted this cleavage  of opinion  in his  Code of  Civil Procedure, 13th Edition, Volume II, P. 1237, as under:           "Where both the parties to a suit file independent      appeals against  the decree  passed therein, and one of      them dies  pending the  appeal, the substitution of his      legal representatives  in one appeal does not enure for      the benefit  of the  other  appeal  which  consequently      abates. But where one party to a suit prefers an appeal      against the decree passed therein and the other files a      memorandum of cross-objections under O. 41, r. 22, What      is  the  effect  of  the  legal  representatives  of  a      deceased party  to the proceedings being substituted in      the memorandum  of cross-objections,  and  not  in  the      appeal ?  There is  a conflict  of judicial  opinion on      this question.  Where the respondent died and his legal      representative  was   brought  on  record  on  his  own      application in  the cross-objections  and the appellant      had not  applied to  bring him  on record,  it was held      that the  substitution of  the legal  representative in      the cross-objection  enured  for  the  benefit  of  the      appeal also  as both  the appeal  and the  cross appeal      (sic) were part of the same proceedings. And where 618      the appellant  died, and his legal representatives were      brought on record in the cross-objection but not in the      appeal, it was held that the substitution in the cross-      appeal (sic)  did not  enure for  the  benefit  of  the      appeal and that the latter abated".      Decisions on  which the  commentary is based may now be examined in  depth to  sort out  principle, if any, to which the cleavage of opinion is referable.      In a  very early  decision in  Brij Indar Singh v. Lala Kanshi Ram  & Ors.,(1)  the  Judicial  Committee  held  that substitution of  a deceased party’s legal representatives in an interlocutory appeal arising from an order made in a suit would enure  for the  benefit of  the suit  and no  separate application for  substitution in  the suit  need be made. It was in  terms held that the introduction of a plaintiff or a defendant at  one stage  of the  suit is an introduction for all stages,  and that though it was done in the course of an interlocutory application  as to the production of books the same  would  enure  for  the  benefit  of  the  suit.  While affirming the  ratio of this decision this Court in Rangubai Kom Shankar  Jagtap v.  Sunderabai Bharatar Sakharam Jedhe & Ors.,(2) analysed  the principle  underlying Order 22, rules 3, 4 and 11 as under:           "Let us  now consider the question on principle. A      combined reading of Order XXII, rr. 3, 4 and 11, of the      Code of  Civil Procedure  shows that  the  doctrine  of      abatement applies  equally to  a suit  as well as to an

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    appeal. In  the application  of the said rr. 3 and 4 to      an  appeal  instead  of  "plaintiff"  and  "defendant",      "appellant" and  "respondent" have  to be read in those      rules. Prima facie, therefore, if a respondent dies and      his legal  representatives are  not brought  on  record      within  the  prescribed  time,  the  appeal  abates  as      against the  respondent under r. 4, read with r. 11, of      O. XXII  of the  Code of  Civil Procedure. But there is      another principle  recognised by the Judicial Committee      in the  aforesaid decision  which softens the rigour of      this rule.  The said  principle is  that if  the  legal      representatives  are   brought  on  record  within  the      prescribed time at one stage of the suit, it will enure      for the  benefit of  all the  subsequent stages  of the      suit. The  application of  this principle  to different      situations will help to answer the problem presented in      the present  case. (1) A filed a suit against B for the      recovery of  possession and  mesne profits.  After  the      issues were framed, B 619      died. At  the stage of an interlocutory application for      production of documents, the legal representatives of B      were brought  on record within the time prescribed. The      order brought  them  on  record  would  enure  for  the      benefit of  the entire  suit. (2)  The suit was decreed      and an  appeal was  filed in  the High  Court  and  was      pending therein.  The  defendant  died  and  his  legal      representatives were  brought on  record. The  suit was      subsequently remanded  to the  trial Court.  The  order      bringing the  legal representatives  on record  in  the      appeal would  enure for the further stages of the suit.      (3) An  appeal was filed against an interlocutory order      made in  a suit.  Pending the appeal the defendant died      and his  legal representatives  were brought on record.      The  appeal   was  dismissed.   The  appeal   being   a      continuation or a stage of the suit, the order bringing      the legal representatives on record would enure for the      subsequent stages of the suit. This would be so whether      in the  appeal the  trial Court’s  order was confirmed,      modified or  reversed. In the above 3 illustrations one      fact is  common, namely,  the order  bringing on record      the legal  representatives was made at one stage of the      suit, be  it in  the suit  or in  an appeal against the      interlocutory order  or final  order made  in the suit,      for an  appeal is  only a  continuation  of  the  suit.      Whether the  appellate order confirms that of the first      Court,  modifies   or  reverses   it,  it  replaces  or      substitutes the  order appealed  against. It  takes its      place in  the suit  and becomes a part of it. It is, as      it were, the suit was brought to the appellate Court at      one stage  and the orders made therein were made in the      suit itself.  Therefore,  that  order  enures  for  the      subsequent stages of the suit.           But the  same legal  position cannot be invoked in      the reverse  or converse  situation. A  suit is  not  a      continuation of  an appeal.  An order  made in  a  suit      subsequent to  the filing  of an  appeal at  an earlier      stage will  move forward  with the subsequent stages of      the suit  or appeals  taken therefrom; but it cannot be      projected backwards  into the  appeal that  has already      been filed.  It cannot  possibly become an order in the      appeal.  Therefore,   the  order   bringing  the  legal      representatives of  the 7th respondent on record in the      final decree  proceedings cannot  enure for the benefit      of the appeal filed against the preliminary decree. We,

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    therefore, hold  that the  appeal abated  so far as the      7th respondent was concerned." 620      In Sankaranaraina  Saralaya v.  Laxmi Hengsu & Ors.,(1) two independent appeals were filed against the decree of the trial court  in the  suit, one appeal being by the plaintiff and the  other appeal by defendant 2. In the appeal filed by defendant 2  the legal  representatives of  the  respondent, viz., the plaintiff not having been brought on record within the time prescribed by law, the appeal abated, and when that abatement was  sought to  be set aside, the Court found that there was  no ground  for allowing  the application.  It was then contended that because the legal representatives of the appellant in other appeal (who was undoubtedly the plaintiff in the  suit) have  been added  within the  time allowed, it should be  taken that  those legal representatives have also been added  in place of the deceased respondent by defendant 2. Negativing  this contention a learned single Judge of the Madras High  Court held  that there  is  no  interdependence between the  two appeals  and the analogy of an appeal and a memorandum of  cross-objection in  the same  appeal does not hold good in case of two independent appeals where the Court has to deal with two separate and independent appeals though arising from  the same  suit and  the  parties  adopt  rival positions. The  Court distinguished  the  decision  in  Brij Indar Singh’s  case (supra)  by posing a question to itself: ’Can it  be said  in the  present case that what was done in one appeal  could enure  for the  benefit of  another appeal unless the  latter appeal can be deemed to be a continuation or a  further  stage  of  the  appeal  in  which  the  legal representatives were  brought on  record’ and answered it in the negative observing that it is not possible to extend the principle laid  down by  Judicial Committee  in  Brij  Indar Singh’s case (supra)      In Dasondha  Singh v.  Shadi Ram  Sardha Ram  & Ors.(2) there were cross appeals arising from the same decree before the Court  and the  plaintiff Shadi  Ram was an appellant in the appeal  preferred by  him and  when he  died  his  legal representatives were  impleaded within  the prescribed time. In the appeal preferred by the defendant the application for impleading Shadi  Ram’s legal representatives which was made beyond the  prescribed period  of limitation  and the  Court having declined  to condone the delay, the appeal abated. It was contended that as the legal representatives of Shadi Ram were impleaded in his appeal and as both these appeals arose out of the same judgment, the legal representatives of Shadi Ram being  before the  Court it  is a mere formality to make necessary endorsement  on record  and, therefore, the appeal preferred  by   defendant  2  would  not  abate.  The  Court negatived  the   argument  relying  upon  a  Division  Bench decision in Punjab State v. Atma Singh.(2). 621      In State  of Rajasthan & Ors. v. Raghuraj Singh,(1) two cross-appeals came  to be  filed against the decision of the trial court to the Rajasthan High Court. During the pendency of these  appeals the  plaintiff who  was appellant  in  his appeal died  and his  legal representatives  were  impleaded within time.  It appears  that the  legal representatives of the plaintiff  who was respondent in defendant’s appeal were not substituted  and a  preliminary objection was taken that the defendant’s  appeal abates  or has abated. The defendant countered this  submission by  saying  that  as  plaintiff’s legal representatives  were before  the Court  as brought on record and  substituted in  the plaintiff’s appeal, it would be permitting  a technicality  to hold  that the defendant’s

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appeal has  abated. The Court examined two separate limbs of the submission:  (1) what  is the  effect of substitution of deceased party’s  legal representatives  in cross-objections though no such substitution was made in the main appeal; and (2) would  the effect  be different  if  instead  of  cross- objections there were cross-appeals. A Division Bench of the Rajasthan High  Court held  that cross-objections being part of the  same proceedings  and form  part of the same record, substitution  of   legal  representatives   in  the   cross- objections would  enure for  the benefit of the main appeal. But  in  the  case  of  cross-appeals,  after  referring  to Sankaranaraina Saralaya’s  case, (supra) the High Court held that substitution  of legal  representatives of  a  deceased party in  one appeal  cannot enure  for the  benefit of  the cross-appeal and,  therefore, defendant’s appeal was held to have abated.      An analysis  of the  aforementioned decisions in search of a  common thread  or a deducible principle has not proved helpful.      The following conclusions emerge from these decisions:      (1) If  all legal  representatives  are  not  impleaded after diligent  search and some are brought on record and if the  Court  is  satisfied  that  the  estate  is  adequately represented  meaning  thereby  that  the  interests  of  the deceased party are properly represented before the Court, an action would not abate.      (2) If  the legal  representative is  on  record  in  a different capacity,  the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding.      (3) If  an appeal  and cross-objections  in the  appeal arising from a decree are before the appellate court and the respondent dies,  substitution of  his legal representatives in the cross-objections being part of the same record, would enure for  the benefit  of the appeal and the failure of the appellant to implead the legal representatives of the 622 deceased respondent would not have the effect of abating the appeal but not vice versa.      (4) A  substitution of  legal  representatives  of  the deceased party  in an  appeal or  revision even  against  an interlocutory order would enure for the subsequent stages of the suit  on the  footing that appeal is a continuation of a suit and  introduction of  a party  at one  stage of  a suit would enure for all subsequent stages of the suit.      (5) In cross-appeals arising from the same decree where parties to  a suit  adopt rival positions, on the death of a party if  his legal  representatives are  impleaded  in  one appeal it will not enure for the benefit of cross-appeal and the same would abate.      Is  it   possible  to  ratiocinate  these  decisions  ? Apparently the  task is  difficult. Now,  if the  object and purpose behind  enacting Order 22, rules 3 and 4 are kept in forefront conclusions Nos. 1 to 4 would more or less fall in line with the object and purpose, namely, no decision can be recorded in  a judicial  proceeding concerning the interests of a  party to a proceeding without giving such party or his legal  representatives   an  opportunity  of  putting  forth its/their case.  To translate  this  principle  into  action denuding it of its ultra technical or harsh application, the Courts held  that if  some legal  representatives are before the Court, or they are before the Court in another, capacity or are  brought on  record at  some stage  of the  suit, the action will  not abate even if there is no strict compliance with the  requirements of  rules 3 and 4. The distinction in

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the  process   drawn  between   the  substitution  of  legal representatives in  cross-objections and cross-appeal defies ratiocination. Cross-appeal and cross-objections provide two different remedies  for the  same purpose  and that  is  why under Order  41, rule  22, cross-objections can be preferred in respect  of such  points on  which that  party could have preferred an  appeal. If  such be  the  position  of  cross- objections and  cross-appeal a differentiation in the matter of their  treatment under  rules 3 and 4 cannot be justified merely on  the ground  that in case of cross-objections they form part  of the  same record  while cross-appeals  are two independent proceedings.      Now, if  the discernible  principle underlying  rules 3 and 4  of Order  22 is that the legal representatives of the deceased likely  to be  affected one way or the other by the decision in  appeal must  be before  the Court  and must  be heard  before   a  decision  affecting  their  interests  is recorded it  would stand  fully vindicated  when  in  cross- appeals a  party occupying  the position  of an appellant in one appeal  and respondent  in the other appeal dies and his legal representatives are brought on record in the appeal in which he  is the  appellant and  not  in  the  other  appeal wherein he  is a  respondent because  the subject-matter  of both the 623 appeals  being   the  decree  under  attack,  they  have  an opportunity to  support  the  decree  in  their  favour  and question the correctness of the decree adverse to them. Even if they  were brought  on record as legal representatives of the deceased  in his  capacity as  respondent in  the cross- appeal, they  could not have further advanced their case nor could they  have done  anything more than what they would do in their  capacity as  legal representatives of the deceased appellant unless  they were  precluded from  contending that they being  not on  record cannot  support or controvert the decree. They  have thus  the fullest  opportunity of putting forth their  grievance against and in support of the decree. Their position  was not  the least likely to be affected one way or the other even if they were not formally impleaded as legal representatives  of the  deceased in  his capacity  as respondent. To  say that  cross-appeals are  independent  of each other is to overlook the obvious position which parties adopt in  cross-appeals. Interdependence of cross-appeals is the same  as interdependence  of appeal and cross-objections because as  in the  case of  appeal and  cross-objections  a decision With  regard to  appeal would directly impinge upon the decision in cross-objections and vice versa. Indubitably the decision  in one  of the  cross-appeals  would  directly impinge  upon   the  decision  in  the  other  because  both ultimately arise  from the  same decree.  This is really the interdependence of  cross-appeals and  it is  impossible  to distinguish cross-appeals  from appeal and cross-objections. Unfortunately this  interdependence was  overlooked  by  the Madras High  Court when  the scope  of cross-appeals arising from the  same decree  and approach  is cross-objections  in respect of  the same  decree were  not examined  in depth in Sankaranaraina Saralaya’s  case (supra).  This  approach  is merely an  extension of  the principle  well  recognised  by Courts that if legal representatives are before the Court in the given  proceeding in  one capacity  it is immaterial and irrelevant if  they are  not  formally  impleaded  as  legal representatives of  the deceased  party in another capacity. Shorn of  embellishment, when  legal  representatives  of  a deceased appellant  are substituted  and  those  very  legal representatives as of the same person occupying the position

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of  respondent  in  cross-appeal  are  not  substituted  the indisputable outcome  would be  that they  were on record in the connected  proceeding before the same Court hearing both the matters,  in one capacity though they were not described as  such   in  their   other  capacity,   namely,  as  legal representatives of  the deceased  respondent. To ignore this obvious position  would be  giving undue  importance to form rather than  substance. The  anxiety of  the Court should be whether those  likely to  be affected by the decision in the proceeding were  before the Court having full opportunity to canvass their case. Once that is satisfied it can be 624 safely said  that the  provisions contained in rules 3 and 4 of Order  22 are  satisfied in a given case. To take another view  would   be  to   give  an  opportunity  to  the  legal representatives of  a deceased party in an appeal having had the fullest  opportunity to  canvass their  case through the advocate of their choice appearing in cross-appeals for them and having  canvassed their case and lost, to turn round and contend that  they  were  not  before  the  Court  as  legal representatives of  the same  person in  his other capacity, namely, respondent  in the  cross appeal.  In  other  words, those  legal  representatives  were  before  the  Court  all throughout the  hearing of  the appeal  as  parties  to  the appeal and canvassed their case and were heard through their advocate and  they had  the full  opportunity to  put  forth whatever contentions were open to them in the appeals and to contest  the   contentions  advanced  against  them  by  the opposite side  and yet  if the  other view  is taken that as they were not formally impleaded as legal representatives of the deceased  respondent in the cross-appeal that appeal has abated, it  would be  wholly unjust. It is very difficult to distinguish on  principle  the  approach  of  the  Court  in appeals and  cross-objections and  in cross  appeals in this behalf.  No   principle  of   law   can   distinguish   this devigational approach.  The cases  which have taken the view that in cross-appeals the position is different than the one in appeal  and  cross  objections  do  not  proceed  on  any discernible legal  principle. Nor  can they  be explained by any demonstrable  legal  principle  but  in  fact  they  run counter to the established legal principle.      In  the  present  case  the  legal  representatives  of deceased Y.  Prabrakar Reddy  were brought  on record in the claimants’  appeal.   Through  their   advocate  they   were contending  before   the  High   Court  that  not  only  the compensation  should   be  enhanced  but  in  reply  to  the submissions of  the counsel  for the  State in  their appeal they contended  that no  case was  made out for reducing the compensation. Both  the appeals  were heard together and not one after the other. Therefore, the legal representatives of the deceased  Y. Prakhakar  Reddy were all throughout before the Court,  of  course  in  one  capacity,  viz.,  as  legal representatives of  deceased appellant, but not so described as legal  representatives of  the deceased  respondent. That cannot make  any difference.  Therefore, the  appeal has not abated.      On merits, I agree with my learned brother Shinghal, J. that  the   compensation  as   awarded  by  the  High  Court represents the  market value  of the land on the date of the Notification under  s. 4  of the Land Acquisition Act and no case is made out for interfering with the same. Accordingly, I agree  with the  final order  that the appeal be dismissed with no order as to costs. P.B.R.                                     Appeal dismissed. 625

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