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PETITIONER: MAHABIR PRASAD

       Vs.

RESPONDENT: JAGE RAM & ORS.

DATE OF JUDGMENT06/01/1971

BENCH: SHAH, J.C. (CJ) BENCH: SHAH, J.C. (CJ) HEGDE, K.S.

CITATION:  1971 AIR  742            1971 SCR  (3) 301  1971 SCC  (1) 265  CITATOR INFO :  MV         1972 SC1181  (36)  R          1975 SC 733  (30,34)  E          1979 SC1393  (30)

ACT: Code of Civil Procedure (5 of 1908), O.41, r. 4-Scope of.

HEADNOTE: The appellant, his wife, and his mother held a joint decree. Against an order dismissing the application for execution of the  decree, the appellant alone appealed joining the  other two  as  party respondents.  Pending appeal his  wife  died. The High Court dismissed the appeal holding that because the heirs  and legal representatives of the appellant wife  were not  brought on record within the period of  limitation  the appeal  abated in its entirety. , The High Court was of  the view that the power of the appellate court under 0. 41. r. 4 Code of Civil Procedure may be exercised only in those cases where there is a decree which proceeds upon a ground  common to more persons than one and the appeal is filed by one-, or more  of  them  but  not  all  and  other  persons  who  are interested in the result of the appeal are not made  parties to the appeal.  Allowing the appeal, HELD:     (i)  Power of the appellate court under 0. 41,  r. 4,  C.P.C.  to, very or modify the decree of  a  Subordinate Court  arises  when one of the persons out of  many  against whom  a decree or an order had been made on a  ground  which was  common to him and others, has appealed, and that  power may be exercised when other persons who were parties to  the proceeding  before  the- Subordinate Court  are  either  not impleaded  as  parties  to the appeal or  are  impleaded  as respondents.   The  power  is not lost  merely  because  the person  who  was jointly interested in. the claim  has  been made a party respondent and on his death his heirs have  not been brought on the record. Ratan Lal Shah v. Firm Lalmandas Chhadammalal & Anr., [1970] 1’ S.C.R. 296, relied on. Rameshwar Prasad & Ors. v. M/s.  Shyam Beharilal Jagannath & Ors. [1964] 3 S.C.R. 549, distinguished. (ii) 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

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by an appropriate application made in that behalf that he is also  on  the record, as an heir and  legal  representative. Even if there are other heirs and legal representatives  and no application for impleding them is made within the  period of   limitation  prescribed  by  the  Limitation   Act   the proceeding  will not abate.  On that ground also  the  order passed by the High Court cannot be sustained.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  609  of’ 1967. Appeal from the order dated March 3, 1965 of the Punjab High Court,  Circuit  Bench at Delhi in Execution  First  Appeal. No. 192-C of 1961. S.   T. Desai and A. D. Mathur, for the appellant, V.   D. Mahajan, for respondent No. 3. 302 The Judgment of the Court was delivered by Shah, C. J. Jage Ram and two others-hereinafter collectively called  the  defendants-were  lessees  of  certain  property belonging  to Mahabir Prasad, his mother Gunwanti  Devi  and his  wife Saroj Devi (collectively referred to hereafter  as ’the plaintiffs’.) The plaintiffs commenced an action in the court  of the ,Subordinate Judge, First Class, Delhi, for  a decree for Rs. 61,750/being the amount of rent due, by  ’the defendants’.  The Subordinate Judge, Delhi decreed the suit. Execution  of the decree was resisted by the  defendants  on the  plea  inter  alia, that  the  decree  was  inexecutable because  of  the provisions of the Delhi Land  Reforms  Act, 1954.   The  Subordinate  Judge upheld  the  contention  and dismissed  the  application for execution.   Mahabir  Prasad alone  appealed  against that order and  impleaded  Gunwanti Devi  and Saroj Devi as party-respondents.  Saroj Devi  died in November, 1962, and Mababir 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". The  High Court dismissed the appeal holding that because  t heirs  and  legal  representatives of Saroj  Devi  were  not brought  on  the  record within  the  period  of  limitation prescribed  by the Limitation Act the appeal abated  in  its entirety.  Against that order, this appeal is preferred with certificate granted by the High Court. Ile  decree in favour of Mahabir Prasad, Gunwanti  Devi  and Saroj Devi was a joint decree.  Order 41 r. 4 Code of ,Civil Procedure provides :               "Were  there  are  more  plaintiffs  or   more               defendants than one in a suit, and the  decree               appealed from proceeds on any ground common to               all the plaintiffs, or to all the  defendants,               any one of the plaintiffs or of the defendants               may   appeal  from  the  whole,  decree,   and               thereupon  the Appellate Court may reverse  or               vary   the  decree  in  favour  of   all   the               plaintiffs or defendants, as the case may be" Order 41 r. 4 Code of Civil Procedure invests the  appellate court with power to reverse or vary the decree in favour of all  the plaintiffs or defendants even though they  had  not joined  in the appeal if the decree proceeds upon  a  ground common to all the plaintiffs or defendants.  In the, view of the High Court the power of the Appellate Court under 0.  41 r. 4 Code of Civil Procedure may be exercised only in  those cases  where there is a decree which Proceeds upon a  ground

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Common  to more persons than one and the appeal is filed  by one or more of them but not :all, and other persons who  are interested in the result of the 303 appeal  are  not  made  parties to  the  appeal either  as appellants or respondents.  Where, , such other persons  are made  parties  to the appeal and one of them  dies  and  his heirs  are  not brought on the record within the  period  of limitation  prescribed  by the Limitation  Act,  the  appeal abates in its entirety.  The High Court observed :               "Appellant  Mahabir Prasad has  impleaded  the               remaining two decree-holders as respondents to               the  appeal. the execution application of  all               the  decree-holders  has been dismissed  on  a               common ground that the decree which is  sought               to be executed has become null and void.   The               appeal abates so far as decree-holder  Sarojni               respondent  is  concerned  because  her  legal               representatives  have not been brought on  the               record   within  time.   The,  order  of   the               executing  Court  has become final so  far  as               this  deceased  respondent is  concerned.   It               follows that that order cannot be modified  or               varied  in favour of appellant Mahabir  Prasad               and   the   second   surviving   decree-holder               respondent  for obviously that may  result  in               inconsistent  orders with regard to  the  same               decree: The order of the executing Court in so               far   as   Sarojni  deceased   respondent   is               concerned-has  become  final and if  the  same               order is modified or interfered with so far as               the other two decree-holders, namely,appellant               Mahabir  Prasad and respondent  Gunwanti  Devi               are concerned, the apparent result will be two               inconsistent  orders with regard to  the  same                             decree   which  the  decreeholders   s eeks   to               execute.   So the appeal of appellant  Mahabir               Prasad also abates". If  support  of their view the High Court  relied  upon  the judgment of this Court in Rameshwar Prasad and Others v. Mls Shyam Beharilal Jagannath and Others.(1) That was a case  in which  nine  persons  instituted  a suit  for  a  decree  in ejectment  and for recovery of rent against  two  defendants and  obtained  a decree.  In appeal the District  Judge  set aside  the  decree,  against one  of  the  defendants.   The plaintiffs filed a second appeal in the High Court and  when the appeal was pending one of the plaintiffs (appellants  in the High Court) died.  No application for bringing his legal representatives on the record was made within the prescribed time.   The respondents objected that the entire appeal  had abated because the interest of the surviving appellants  and of the deceased appellant was joint and indivisible and that in the event of the success of the appeal there would be two inconsistent  and  contradictory  decrees.   The   surviving appellants claimed that the (1) [1964] 3 S.C.R. 549. 304 the  appeal  was  maintainable on the  ground  that  without impleading  the  plaintiff  who had  died  they  could  have appealed against the entire decree in view of the provisions of  0. 41 r. 4 of the Code of Civil Procedure, and  on  that account  they  were competent to continue the  appeal,  even after  the  death  of one or the  joint  decree-holders  and abatement of the appeal so far as he was concerned, and  the

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Court  had power to hear the appeal and to reverse  or  vary the whole decree.  This Court held that the provisions of 0. 41 r. 4 of the Code of Civil Procedure were not  applicable, for the second appeal in the High Court was filed by all the plaintiffs  jointly, and the surviving appellants could  not be  said  to  have  filed the  appeal  as  representing  the deceased  appellant.   The  Court  further  held  that   the appellate  court had no power to proceed to hear the  appeal and  to  reverse  or vary the decree in favour  of  all  the plaintiffs  or  defendants under 0. 41 r. 4 of the  Code  of Civil  Procedure,  when  the decree proceeded  on  a  ground common  to  all the plaintiffs, or defendants,  if  all  the plaintiffs  or the defendants appealed from the  decree  and any of them died, and the appeal abated in so far as he  was concerned under 0. 22 r. 3, of the Code of Civil  Procedure. Rameshwar Prasad’s case(1) is obviously distinguishable from the  present  case.   In  Rameshwar  Prasad’s  caseall   the plaintiffs  whose  suit  had, been dismissed  had  filed  an appeal  and thereafter one of them died and his  heirs  were not brought on the record.  In the, present case there is an order against the decree-holders but all the  decree-holders did  not  appeal : only one of them appealed and  other  two were joined as party respondents. In a later judgment of this Court in Ratan Lal Shah v.  Firm Lalmandas Chhadammalal & Anr. (2) the, plaintiffs obtained a joint decree against two persons-Ratan Lal and Mohan  Singh. Against  the  decree Ratan Lal alone appealed  to  the  High Court  of Allahabad.  Mohan Singh was impleaded as a  party- respondent  to the appeal.  Notice of appeal sent  to  Mohan Singh  was  returned unserved, and no steps  were  taken  to serve  him  with  notice  of the  appeal.   The  High  Court dismissed  the appeal holding that there was a joint  decree against  Ratan  Lal and Mohan Singh in a suit founded  on  a joint cause of action and the decree against Mohan Singh had become  final.   The appellant could not,  on  that  account claim  to  be heard in his appeal if he was  heard  and  his claim was upheld.  The High Court observed that there  would be two conflicting decisions between the same parties and in the same suit based on the same cause of action.  This Court set aside the judgment of the High Court observing that even though Mohan (1) [1964] 3 S.C.R. 549. (2) [1970] 1 S.C.R. 296. 305 Singh was not served with notice of appeal, the appeal filed by Ratan Lal was maintainable, in view of the provisions  of 0.  41  r. 4 Code of Civil Procedure.  In Ratan  Lal  Shah’s case(1) this Court allowed the appeal to be prosecuted, even though one of the joint decree-holders impleaded as a party- respondent  had not been served with the notice  of  appeal. In the present  case one of the respondents had died and his heirs  have not been brought on the record.  No  distinction in  principle may be made between Ratan Lal  Shah’J  case(1) and the present case.  Competence of the appellate court  to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost   merely  because  of  the  persons  who  was   jointly interested in the claim has been made a,party-respondent and on his death his heirs have not been brought on the  record. Power of the appellate court under Order 41 r. 4 to vary  or modify the decree of a Subordinate Court arises when one  of the  persons out of many against whom a decree or  an  order had been made on a ground which was common to him and others has  appealed.   That  power may  be  exercised  when  other

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persons  who  were  parties to  the  proceeding  before  the subordinate  court and against whom a decree proceeded on  a ground which was common to the appellant and to those  other persons are either not impleaded as parties to the appeal or are  impleaded as respondents.  The view taken by  the  High Court cannot therefore be sustained. 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 the 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.  On that ground also  the  order passed by the High Court cannot be, sustained. The  appeal  is allowed and the proceeding remanded  to  the High  Court  to be dealt with and disposed of  according  to law.   Defendants will pay the costs of this appeal.   Costs in the High Court will be the costs in the appeal. K.B.N.                         Appeal allowed. (1) [1970] 1 S.C.R. 296. L807 Sup CI/71 306