http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: NATHU RAM

DATE OF JUDGMENT: 01/05/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1962 AIR   89            1962 SCR  (2) 636  CITATOR INFO :  R          1963 SC1901  (15)  R          1964 SC 215  (10)  D          1965 SC1049  (10)  R          1965 SC1531  (16)  F          1966 SC1427  (7,8)  R          1972 SC1181  (16,26,30)  R          1973 SC 655  (7)  R          1975 SC 733  (30)  E          1979 SC1393  (3,21,22,23)  RF         1990 SC 723  (12)

ACT: Abatement  of appeal-joint decree in favour of  respondents- Death of one of the respondents in appeal-Failure to  bring, legal representative on record-Whether the appeal abates  as a  whole-Test-Code of Civil Procedure, 1908 (V of 1908),  0. 22, r. 4.

HEADNOTE: The  Punjab  Government  acquired certain  parcels  of  land belonging  to two brothers Land N who refused to accept  the compensation  offered to them and applied to the  Government of Punjab under r. 6 of the Punjab Land Acquisition (Defence of  India) Rules, 1943, to refer to arbitration their  joint claim based on the allegation that the land belonged to them jointly.   The  State Government referred the matter  to  an arbitrator  as required under r. 10 who passed an  award  in favour  of  both L and N ordering inter alia payment  of  an amount  higher  than  what  was  offered  to  them  by   the Government.  The Government appealed against the said  award to the High Court.  During the pendency of the appeal before the  High Court respondent L died and as no application  for bringing  on record his legal representative had  been  made within  the time limit, the High Court dismissed the  appeal holding  that the appeal had abated against L and  that  its effect was that the appeal against N also abated. Held,  that there can be no question of abatement of  appeal against  the  correspondents of the deceased  respondent  as Order  22  Rule 4 of the Code of Civil  Procedure  does  not provide for the same but in certain circumstances the appeal cannot proceed against them and such a result depends on the nature of the relief sought in the appeal.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

If the Court can deal with the matter in controversy so  far as regards the rights and interest of the appellant and  the respondents  other than the deceased respondent, it  has  to proceed  with  the appeal and decide it; otherwise  it  will have  to  refuse  to proceed further  with  the  appeal  and therefore  dismiss it. Ordinarily, the  consideration  which will  weigh  with the court in deciding  upon  the  question whether the entire appeal had abated or not will be  whether the appeal between the appellants and the respondents  other than  the  deceased respondent can be said  to  be  properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests  to determine this have been described thus: (a)  when the success of the appeal may lead to the court’s coming  to a  decision  which  will be in conflict  with  the  decision between  the  appellant  and  the  deceased  respondent  and therefore  which would lead to the court’s passing a  decree which will be contradictory to the decree which had become                             637 final  with respect to the same subject matter  between  the appellant   and  the  deceased  respondent;  (b)  when   the appellant  could  not  have  brought  the  action  for   the necessary  relief  against those respondents alone  who  are still  before the court and (c) when the decree against  the surviving   respondents,   if  the   appeal   succeeds,   be ineffective  that  is to say it could  not  be  successfully executed. The  abatement of an appeal against the deceased  respondent means not only that the decree between the appellant and the deceased respondent has become final but also as a necessary corollary that the appellate court cannot in any way  modify that decree directly or indirectly. When  the decree in favour of the respondents is  joint  and indivisible,  the appeal against the respondents other  than the  deceased  respondent cannot be proceeded  with  if  the appeal against the deceased respondent has abated. In the present case the appeal against N alone was not  pro- perly  constituted when the appeal against L had abated  and the State appeal against N alone could not proceed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 635 to  641 of 1957. Appeals  from  the judgment and decree  dated  September  8, 1954, of the Punjab High Court in Regular First Appeals Nos. 42, 43, 44, 45, 46, 47 and 48 of 1949. R.   Gopalakrishnan,  T.  M. Sen and R. H. Dhebar,  for  the appellants. Darya Dutt Chawla, for the respondents. 1961.  May 1. The Judgment of the Court was delivered by RAGHUBAR  DAYAL,  J.-Civil  Appeal No. 635  of  1957  is  an appeal,  by certificate, and raises the  question  regarding the  effect of the abatement of the appeal, by the State  of Punjab,  against Labhu Ram, one of the respondents,  on  the State appeal against Nathu Ram, co-respondent. Civil  Appeals Nos. 636 to 641 of 1957 also raise  the  same question between the same parties. The  facts  leading  to  the  appeal  are  that  the  Punjab Government  acquired  on  lease  certain  parcels  of   land belonging  to  Labhu  Rain  and  Nathu  Ram,  for  different military purposes, under the Defence of India Act, 81 638

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

1939  (XXXV  of 1939).  Labhu Ram and Nathu  Ram,  brothers, refused  to accept the compensation offered to them  by  the Collector and applied to the Punjab Government, through  the Collector,  under  r.  6  of  the  Punjab  Land  Acquisition (Defence  of  India)  Rules, 1943,  hereinafter  called  the Rules,  as  amended  by  the  Notification  of  the   Punjab Government No. 1444-HM44/19124, dated 10th March, 1944,  and published  in the Punjab Gazette, Part 1, dated 17th  March, 1944  (Home Department).  The State Government referred  the matter to an arbitrator as required under r. 10, who,  after enquiry,  passed an award ordering the payment of an  amount higher  than  what  was offered by the  Collector  and  also ordered the payment of certain amount on account of  income- tax  which would be paid on the compensation received.   The State  Government  appealed against the award  to  the  High Court  of Punjab.  During the pendency of the appeal,  Labhu Ram, one of the respondents, died.  The High Court,  holding that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated, dismissed the  appeal.  It also dismissed the  cross-objections.   The State Government applied for a certificate of fitness of the case for appeal to this Court and the High Court granted it, as  questions  of great private and public  importance  were involved. It  is  not disputed that in view of 0. XXII,  r.  4,  Civil Procedure  Code,  hereinafter called the  Code,  the  appeal abated against Labhu Ram, deceased, when no application  for bringing  on record his legal representatives had been  made within  the time limited by law.  The Code does not  provide for   the  abatement  of  the  appeal  against   the   other respondents.     Courts   have   held   that   in    certain circumstances, the appeals against the co-respondents  would also  abate  as  a result of the  abatement  of  the  appeal against the deceased respondent.  They have not been  always agreed  with  respect to the result of the  particular  cir- cumstances  of  a  case and there  has  been,  consequently, divergence  of opinion in the application of the  principle. It  will  serve  no useful purpose to  consider  the  cases. Suffice it to say that when 0. XXII, r. 4 does                             639 not provide for the abatement of the appeals against the co- respondents  of  the deceased respondent, there  can  be  no question  of abatement of the appeals against them.  To  say that   the   appeals   against  them   abated   in   certain circumstances,  is not a correct statement.  Of course,  the appeals against them cannot proceed in certain circumstances and  have therefore to be dismissed.  Such a result  depends on the nature of the relief sought in the appeal. The same conclusion is to be drawn from the provisions of 0. 1,  r. 9, of the Code which provides that no suit  shall  be defeated  by  reason  of the  misjoinder  or  non-joiner  of parties  and  the Court may, in every suit,  deal  with  the matter  in  controversy  so far as regards  the  rights  and interests  of  the parties actually before it.  It  follows, therefore,  that  if the Court can deal with the  matter  in controversy  so far as regards the rights and  interests  of the  appellant and the respondents other than  the  deceased respondent, it has to proceed with the appeal and decide it. It  is  only when it is not possible for the Court  to  deal with  such matters, that it will have to refuse  to  proceed further with the appeal and therefore dismiss it. The  question whether a Court can deal with such matters  or not, will depend on the facts of each case and therefore  no exhaustive  statement  can be made about  the  circumstances when this is possible or is not possible.  It may,  however,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

be  stated  that ordinarily the considerations  which  weigh with  the Court in deciding upon this question  are  whether the appeal between the appellants and the respondents  other than the deceased can be said to be properly constituted  or can  be  said  to have all the  necessary  parties  for  the decision  of the controversy before the Court.  The test  to determine this has been described in diverse forms.   Courts will not proceed with an appeal (s) when the success of  the appeal may lead to the Court’s coming to a decision which be in conflict with the decision between the appellant and  the deceased  respondent and therefore which would lead  to  the Court’s passing a decree which will be contradictory to  the decree which had become final with respect to 640 the  same  subject  matter between  the  appellant  and  the deceased  respondent; (b) when the appellant could not  have brought  the action for the necessary relief  against  those respondents  alone  who are still before the Court  and  (c) when  the decree against the surviving respondents,  if  the appeal  succeeds, be ineffective, that is to say,  it  could not be successfully executed. There  has been no divergence between the Courts  about  the Court’s  proceeding with the appeal between the  respondents other  than  the  deceased respondent, when  the  decree  in appeal  was  not  a  joint  decree  in  favour  of  all  the respondents.   The  abatement  of  the  appeal  against  the deceased  respondent, in such a case, would make the  decree in   his   favour  alone  final,  and  this   can,   in   no circumstances,  have a repercussion, on the decision of  the controversy  between  the appellant and  the  other  decree- holders  or on the execution of the ultimate decree  between them. The  difficulty arises always when there is a joint  decree. Here  again, the consensus of opinion is that if the  decree is  joint  and  indivisible, the appeal  against  the  other respondents also will not be proceeded with and will have to be  dismissed  as a result of the abatement  of  the  appeal against  the deceased respondent.  Different views exist  in the  case  of joint decrees in favour of  respondents  whose rights  in the subject matter of the decree  are  specified. One view is that in such cases, the abatement of the  appeal against  the  deceased respondent will have  the  result  of making  the  decree affecting his specific  interest  to  be final and that the decree against the other respondents  can be  suitably dealt with by the appellate Court.  We  do  not consider this view correct.  The specification of shares  or of  interest of the deceased respondent does not affect  the nature  of the decree and the capacity of the joint  decree- holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in  his favour.  The abatement of an appeal means  not  only that  the  decree between the appellant,  and  the  deceased respondent  has  become  final, but  also,  as  a  necessary corollary, 641 that  the  appellate Court cannot, in any way,  modify  that decree directly or indirectly.  The reason is plain.  It  is that  in  the absence of the legal  representatives  of  the deceased  respondents, the appellate Court cannot  determine anything between the appellant and the legal representatives which  may  affect the rights of the  legal  representatives under  the decree.  It is immaterial that  the  modification which  the  Court will do is one to which exception  can  or cannot be taken. It is therefore necessary to determine, on the facts of this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

case,  whether the State appeal could proceed against  Nathu Ram.  The award of the arbitrator in each of these cases was a joint one, in favour of both the respondents Labhu Ram and Nathu  Ram.   To illustrate the form of the  award,  we  may quote  the  award for the year 1945-46  in  the  proceedings leading to Civil Appeal No. 635 of 1957.  It is:               "On  the basis of the report of S. Lal  Singh,               Naib Tehsildar (Exhibit P. W. 9/1) and  Sheikh               Aziz  Din, Tehsildar, Exhibit P. W.  9/2,  the               applicants are entitled to a sum of Rs.  4,140               on  account  of rent, plus  Rs.  3,872-8-0  on               account   of  Income-tax  etc.,  due  to   the               inclusion  of  Rs. 6,193-8-0  in  their  total               income, plus such sum as the petitioners  have               to pay to the Income-tax Department on account               of the inclusion of Rs. 4,140 in their  income               as awarded by this award." The result of the abatement of the appeal against Labhu  Ram is therefore that his legal representatives are entitled  to get  compensation on the basis of this award, even  if  they are  to  be paid separately on  calculating  their  rightful share  in the land acquired, for which this compensation  is decreed.  Such calculation is foreign to the appeal  between the State of Punjab and Nathu Ram, The decree in the  appeal will  have to determine not what Nathu Ram’s share  in  this compensation   is,  but  what  is  the  correct  amount   of compensation  with  respect to the land acquired  for  which this  compensation has been awarded by the arbitrator.   The subject   matter  for  which  the  compensation  is  to   be calculated is one and 642 the  same.   There cannot be different  assessments  of  the amounts  of compensation for the same parcel of  land.   The appeal before the High Court was an appeal against a  decree jointly  in favour of Labhu Ram and Nathu Ram.   The  appeal against  Nathu  Ram  alone cannot be  held  to  be  properly constituted  when the appeal against Labhu Ram  bad  abated. To  get  rid of the joint decree, it was essential  for  the appellant,  the State of Punjab, to implead both the  joint- decree holders in the appeal.  In the absence of one  joint- decree  holder,  the  appeal is  not  properly  framed.   It follows the that State appeal against Nathu Ram alone cannot proceed. It is however contended for the State that according to  the entries in the village records, Labhu Ram and Nathu Ram  had equal  shares  in the land acquired and that  therefore  the appeal against Nathu Ram alone can deal with half the amount of the award.  We do not agree.  The mere record of specific shares  in  the  revenue records is no  guarantee  of  their correctness.  The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the  absence  of  his legal representatives.   This  is  not permissible  in law.  Further, the entire case of Labhu  Ram and  Nathu Ram, in their application to the  Government  for the appointment of an arbitrator, was that the land  jointly belonged  to  them  and  had  been  acquired  for   military purposes,  that  a certain amount had been paid to  them  as compensation,  that they received that amount under  protest and that they were entitled to a larger amount mentioned  in the application and also for the income-tax they would  have to  pay on account of the compensation received being  added to their income.  Their claim was a joint claim based on the allegation  that  the land belonged to  them  jointly.   The award  and  the  joint  decree are on  this  basis  and  the appellate  Court cannot decide on the basis of the  separate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

shares. The  State objected before the arbitrator, and urges  before us, that under the rules, the joint application of Labhu Ram and Nathu Ram should have been                             643 treated  as  separate  applications  with  respect  to   the correctness  of  the compensation payable to  each  of  them respectively  and  that  the  arbitrator  should  have  made separate  awards  with respect to such  separate  claims  of Labhu Ram and Nathu Ram.  The necessary corollary of such  a contention for the State is that the abatement of the appeal against  Labhu  Ram  will not make  infructuous  the  appeal against Nathu Ram. The  respondent  urges  that  the  Punjab  Land  Acquisition (Defence  of  India)  Rules,  do  not  contemplate  separate applications  by the persons interested in the  compensation on  account  of the acquisition of a  particular  parcel  of land. The  arbitrator  did not agree to deal with  the  claims  of Labhu  Ram and Nathu Ram separately.  He, however,  did  not decide  the  question  on the basis of  the  land  belonging jointly  to the two brothers as members of the  joint  Hindu family.   He  however  held that the  expression  ’a  person interested’  in  r.  3, included  all  persons  claiming  an interest  in the compensation to be paid on account  of  the acquisition of the land and that r. 18 permitted the joinder of  applications for joint enquiry when each case rested  on the  same  and similar basis and each  of  the  applications included land included in a larger part of land acquired  at one  time.   He  also  took  into  consideration  that   the separation  of the applications of Labhu Ram and  Nathu  Ram would involve various difficulties in matters of income-tax. He therefore used his discretion and ordered the application to be proceeded with jointly. In view of our opinion on the main point, we do not consider it  necessary to interpret the rules and decide whether  the joint application was maintainable or not.  The fact remains that  Labhu Ram and Nathu Ram made a joint claim and  got  a joint decree against the State for compensation.  The  frame of  the appeal is to be with reference to the nature of  the decree challenged. We therefore see no force in this appeal and dismiss it with costs.  This order will govern the other 644 connected  appeals, viz., Civil Appeals Nos. 636 to  641  of 1957. Appeal dismissed.