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PETITIONER: PANDIT SRI CHAND AND ORS.

       Vs.

RESPONDENT: M/S.  JAGDISH PARSHAD KISHAN CHAND

DATE OF JUDGMENT: 04/02/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1966 AIR 1427            1966 SCR  (3) 451  CITATOR INFO :  R          1972 SC1181  (16)  R          1973 SC 655  (7)

ACT: Code  of  Civil  Procedure  (Act V of 1908),  O.  41  r.  4- Abatement  of  Appeal  with respect  to  one  appellant-When operates as abatement of entire appeal-Supreme Court  Rules, 1950, O. 16 r. 14.

HEADNOTE: The  1st respondent filed a suit against the 2nd  respondent for  recovery of money and in pursuance of an order  of  the Court  directing the 2nd respondent to furnish security  for satisfaction  of the decree that may be passed against  him, the three appellants and two others stood sureties  agreeing jointly  and  severally to satisfy the  decree.   After  the ’suit was decreed the first respondent applied for execution of the decree against the sureties.  The-sureties raised the pleas  that the surety bond was not enforceable  because  it was not registered, and that the degree holder had committed acts  by which the remedy of the sureties against  judgment debtor  was  impaired, but the pleas were negatived  by  the executing  court  and  the  High  Court.   After  the  three appellants  preferred an appeal to this Court, one  of  then died and since his legal representatives was not brought  on record, the, appeal abated, as far as he was concerned. On  the question whether the appeal in Sol far as the  other two appellants were concerned also abated, HELD : Applications to bring on record legal representatives of  a deceased appellant or respondent were governed  by  0, 16,  r  14  of th Supreme Court Rules, 1950,  and  the  rule applied to all classes of appeals including appeals  arising from  orders in execution.  Because the  representatives  of the  deceased appellant were. not brought on  record  within the  time permitted by the rule and the delay in filing  the petition  to  bring the representatives on  record  was  not condoned,  the  appeal  of the  deceased  appellant  abated. Since  the liability of the sureties was joint and  several. if  this  Court proceeds with the appeal of  the  other  two sureties  and  holds  that the High Court was  in  error  in rejecting their contentions, there would be two inconsistent

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orders-one  passed  by  the High Court holding  that   the surety  bond  was enforceable, and the other-of  this  Court that it was not enforceable.  Therefore., the appeal must be held to have abated in its entirety. [454 D; 456 B; 457  B] State  of  Punjab  v. Nathu Ram, [1962]  2  S.C.R.  636  and Rameshwar  Prasad  and others v. Shahbehari Lal,  [1964]  13 S.C.R. 549, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 425 of 1963. Appeal  by special leave from the Judgement and order  dated April  14, 1960 of the Punjab High Court (Circuit  Bench  at Delhi) in L.P.A. No. 17-D of 1960. Gopal Singh and Amar Singh, for appellant No. 1. J.   M.  Lal,  E.  C.  Agarwala  and  P.  C.  Agarwala,  for appellant No. 3. 452 Bishan  Narain, K. Rajendra Chaudhury and K.  R.  Chaudhury, for respondent No. 1. Mohan Behari Lal, for respondent No. 3. S. K. Mehta and K. L. Mehta, for respondent No. 4. The Judgment of the Court was delivered by Shah,  J. Messrs Jagdish Pershad  Kishan  Chand-hereainafter called ’the first respondent commenced suit No. 265 of 1952 in the Court of the Senior Subordinate Judge, Delhi, against the  second respondent for a decree for possession of  goods hypothecated to them by Messrs.  Mudgal Motors  Ltd.,-second respondent  in  this ’appeal.  The ’first  respondent  filed another suit No. 43 of 1952 for a decree for Rs. 42,914/10/- being  the  amount  due at the  foot  of  the  hypothecation account,  and for sale of the goods in satisfaction’ of  the amount due.  The two suits were consolidated for trial.   In suit  No.  43  of  1952 the  first  respondent  applied  for appointment of a receiver and the Court directed the  second respondent  to furnish security in the sum of Rs.  50,000/-. Pursuant  to  this  order five persons  stood  sureties  for satisfaction  of the decree.  It was recited in  the  surety bond dated April 21, 1953, that the five sureties  mortgaged the properties specified in the Schedule annexed thereto and jointly  and severally agreed that if any decree was  passed against  the  second respondent they shall comply  with  the same and in default the amount payable under the decree  but not  exceeding  Rs.50,0001-  shall  be  realized  from   the properties mortgaged.  This surety bond was not  registered. Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal. On January 14, 1955, the second respondent was ordered to be wound up in a petition presented by the first respondent  to the  District  Court,  Delhi.   Suit No.  265  of  1952  was thereafter withdrawn and in suit No. 43 of 1952 a decree was passed  against  the second respondent for  RS.  42,914/10/- with  costs  and future interest at  percent  per  cent  per annum.   The  first respondent then applied to  execute  the decree  against the sureties.  The sureties objected to  the execution  of the decree against them on the grounds,  inter alia, that the surety bond not being registered as  required by  law, the application for execution just fail,  and  that since  the first respondent had committed acts by which  the remedy  of  the sureties against the second  respondent  had been impaired the sureties stood discharged.  The Commercial Subordinate   Judge,  First  Class,  Delhi,   rejected   the objections  raised  by the sureties, and the  order  of  the Subordinate Judge was confirmed by Grover, J,, in appeal  to

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the  High Court of Judicature, Punjab.  Appeals against  the order  of Grover, J., under the letters patient of the  High Court were dismissed in limine.  With special leave  granted on August 12, 453 1962,  Sri  Chand,  Basant Lal and  Debi  Ram-three  of  the sureties--have appealed to this Court. Basant Lal, one of the appellants died on October 18, 1962.- As  he died before the record of the appeal was  transmitted to this Court, his heirs and legal representatives   applied on  July 24, 1963, to the High Court for an order  under  0, 16, r. 12 of the Supreme, Court Rules, 1950, certifying that they’   were  proper  parties  to  be  impleaded  as   legal representatives  on  the record of the  appeal.   They  also applied for condonation of delay in moving the  application. The  High Court held that there *as no adequate  explanation justifying an order condoning the delay in making the appli- cation for bringing the heirs on record and accordingly  the application  for condonation of delay and the.’  application for  certifying  the  heirs  were  dismissed.   A   petition submitted to this Court for impleading the heirs and  legal representatives in the appeal was also dismissed by an order made in chamber on February 9, 1965.  Thereafter a  petition was filed on May 7, 1965 for special leave to appeal against the  order  passed by the High Court refusing  to  bring  on record  the legal representatives of Basant Lal.   By  order dated January 20, 1966 we have rejected this petition. Counsel for the first respondent contended that the  appeal’ had abated in its entirety because, the heirs of Basant  Lal had not been brought on record, and the ground on which  the judgment of the High Court proceeded was common to all  the. sureties.   In our view this objection must be upheld.   The appeal   of   Basant  Lal  has  abated   since   the   legal representatives  to his estate have not been  impleaded  and the  record of the appeal is defective.  That is not  denied by  the  appellants.   But it is urged that  this  Court  is competent  to  set aside an order of the High Court  in  its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it  affects the  claim  of appellants 1 & 3 and  the  third  respondent. Support  was sought to be derived for the  first  contention from 0  41, r. 4 of the Code of Civil Procedure and it  was urged  that even if the decree be assumed to have  proceeded on  a ground common to all the sureties, it is open  to  any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour  of all the sureties.  This plea stands refuted by the  judgment of this Court in Remeshwar Prasad, and Others v.  Shambehari Lal  Jagannath and another.(1) It was held by this Court  in Rameshwar  Prasad’s case (1) that an appellate Court has  no power to proceed with an appeal and to reverse and vary  the decree in favour of all the plaintiffs or defendants under 0   41 ’ r. 4 when the decree proceeds on a ground common  to all the plaintiffs or defendants, if’ all the plaintiffs  or the  defendants appeal from the decree and any of them  dies and the appeal abates so far’ as he is concerned. (1)  [1964] 3 S.C.R. 549. 454                 . The two principal pleas raised before Grover, J., were  that the  surety  bond  was not enforceable because  it  wss  not registered and that the decree-holders had committed an  act by  which the remedy of the sureties against  the  judgment- debtor  had been impaired and therefore the  sureties  stood discharged.   The  learned Judge negatived both  the  pleas. The  decision  of the Court obviously proceeded  on  grounds

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which were common to all the sureties. Basant  Lal  died after the order of the  High  Court  under appeal.   He  had preferred an appeal, but since  the  legal representatives  to  his estate  have not been  brought  on record, his appeal has abated.  The order of the High Court holding  that the sureties are liable to satisfy  the  claim notwithstanding  the  objections raised by. Basant  Lal  has become final; In the appeal filed by the appellants 1 & 3 if this  Court  holds  that  the High Court  was  in  error  in deciding that the surety bond was not enforceable because it was  not registered, or that the first respondent has  done some  act which has discharged the sureties  from  liability under   the   bond,  there  would  unquestionably   be   two inconsistent  orders-one  passed by the High  Court  holding that  the  surety bond was enforceable, and the  other,  the view of this Court that it is not enforceable. This Court has on more occasions than one considered whether in  circumstances similar to these, an appeal  should  stand abated in its entirety.  In the State of Punjab v. Nathu Ram (1) this Court explained the tests applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents.  The headnote of the case reads               "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  aid  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   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 courts 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 cour t’s               (1)   [1962] 2 S.C.R. 636.                455                passing a decree which will be  contradictory               to  the  decree which had  become  final  with               respect to the same subjectmatter 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.

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             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." The  principle  of this judgment was affirmed  in  Rameshwar Prasad’s  case (1) and later in an unreported  judgment  in Kishan Singh and others v. Nidhan Singh and others (2).   It may  be  pointed  out  that the  three  tests  suggested  by Raghubar  Dayal,  J.,  in  Nathu  Ram’s  case  (3)  are  not cumulative  tests.   Even if one of them is  satisfied,  the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirety. But counsel for the appellants has contended that the  rules laid  down by this Court in Nathu Ram’s case (3)  and  other cases  has  no application to this  appeal,  firstly,because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained  in 0 22, r. 12 Code of Civil Procedure have no application  to appeals  in an execution proceeding, and secondly,  that  in cases  in which the order or decree appealed  against  gives rise to a liability Which is joint and several it is open to one of the persons declared so liable to prosecute an appeal in  so far as he is concerned, notwithstanding abatement  of the appeal of a co-obligee.  Order 22, r. 12 of the Code  of Civil  Procedure provides that nothing in rules 13, 4 and  8 shall  apply  to  proceedings in execution of  a  decree  or order.   On  the true interpretation of this rule  there  is conflict  of opinion in the High Courts.  In some cases  the view  has  prevailed that appeals from orders  in  execution proceedings  are  not subject to rules 3, 4 and 8 of  O  22, Code  of Civil Procedure and failure to implead  heirs.  and legal (1)  [1964] 3 S.C.R. 549. (2)  C.A. 563 of 1963 decided on Dec. 14, 1964. M10 Sup.  CI/6-16 (3) [1962] 2 S.C.R. 636 456 representatives  of a deceased party in such an appeal  will not be visited by an order of abatement.  In other cases  it has  been held that an appeal against an order in  execution is not "a proceeding in execution of a decree" and that such an appeal will abate if the heirs are not brought on  record within  the  period  of limitation, and that r.  12  has  no application to appeals.  In this appeal it is not  necessary to  resolve  this conflict, for, appeals to this  Court  are governed by the rules contained in 0.16 of the Supreme Court Rules, 1950, and by r. 14 thereof it is provided :               "An  application to bring on record the  legal               representative  of  a  deceased  appellant  or               respondent shall be made within ninety days of               the death of the said apPellant or respondent               Provided that in computing the said period the               time taken in obtaining a certificate from the               High Court shall be excluded." The rule is explicit and makes no exemption in favour of any class  of appeals.  It is true that r. 14-A of 0 16  of  the Supreme Court Rules, 1950, provides that :               "The  provisions  of Order XXII  of  the  Code               relating  to abatement and of Article  171  in               the  First Schedule to the  Indian  Limitation               Act,  1908 (IX of 1908), shall, so far as  may               be   applicable,   apply   to   appeals    and               proceedings  under rule 12 and rule 13 in  the

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             High Court and in the.  Supreme Court." nd there by the provisions of O. 22 relating to abatement of appeals are attracted.  But there is no warrant for  holding that any class of appeals filed in this Court is exempt from the operation of r. 14. Liability  of  the  sureties  is under  the  law  joint  and several.  if  a creditor seeks to enforce  the  surety  bond against some only of the joint sureties, the other  sureties will not on that account be discharged : nor will release by the  creditor of one of them discharge the other : vide  ss. 137 & 138 of the Contract Act.  But the fact that the surety bond is ,enforceable against each surety severally, and that it  is  open to the creditor to release one or more  of  the joint  sureties,  does not alter the true  character  of  an adjudication of the Court when proceedings are commenced  to enforce the covenants of the bond against all the  sureties. We are not concerned in this appeal with the privilege which a  creditor  may  exercise,  but  with  the  effect  of   an adjudication  which  the Court has made in a  proceeding  to enforce  the covenant of the bond.  The mere fact  that  the obligation   arising  under  a  covenant  may  be   enforced severally against all the covenantors does not make, 457 the liability of each covenantor distinct.  It is true  that in  enforcement  of  the  claim  of  the  decree-holder  the properties  belonging  to the sureties individually  may  be sold  separately.   But that is because the  properties  are separately owned and not because the liability arises  under distinct transactions. It  must  therefore  be held that  the  appeal  has  abated, because  the representatives of the second  appellant-Basant Lal-have  not  been  brought  on  record  within  the   time permitted  by  r. 14 of 0. 16 of the  Supreme  Court  Rules, 1950,  and  the delay in filing the petition  to  bring  the representatives on record has not been condoned. The  appeal  must therefore fail and is  dismissed.   Having regard  to the circumstances, there will be no order  as  to costs in this appeal. Appeal dismissed.. 458