BHAGWAN SWAROOP Vs. MOOL CHAND

JUDGEMENT

(1.) Special leave granted.

(2.) Father of appellants Nos. 1 and 2 one Shri Maharaj Swarup and 8 others filed a suit against defendant No. 1 Sh. Ganesh Narain Mathur and defendant No. 2 one Sh. Mool Chand for partition and possession of the undivided share in the properties set out in Sch. 'B' annexed to the plaint. In respect of properties set out in Sch. 'C', plaintiffs claimed undivided half share with defendant No. 1 Ganesh Narain Mathur. There was also a claim for partition for other properties set out in the plaint. This suit ended in a preliminary decree declaring the share of plaintiffs on one hand and defendants Nos. 1 and 2 on the other hand and certain directions were given for rendering accounts by different parties to the suit. A direction was given that a Commissioner be appointed for effecting partition according to the preliminary decree and for taking accounts. The preliminary decree was dated Jan. 11, 1972. Plaintiff Maharaj Swaroop preferred 1st Appeal No. 67 of 1972 in the High Court of Judicature for Rajasthan at Jaipur. It appears that during the pendency of the appeal, appellant Maharaj Swaroop died and his heirs and legal representatives were substituted. In this appeal Ganesh Narain Mathur, original defendant No. 1, was impleaded as respondent No. 1. During the pendency of the appeal, respondent No. 1 (original defendant No. 1) Ganesh Narain Mathur died on Feb. 10, 1977. On Aug. 30, 1981, Mool Chand, respondent No. 2 (original defendant No. 2) moved an application that original respondent No. 1 Ganesh Narain Mathur having expired on Feb. 10, 1977 and his heirs and legal representatives having not been substituted, the appeal abates as a whole. It was alleged that appellant No. 2 Sh. Dhanna Lal, appellant No. 3 Sh. Sital Prashad, appellant No. 4 Sh. Amba Swaroop and pro forma. respondent No. 3 Sh. Manmohan Lal were fully aware of the demise of respondent No. 1 Ganesh Narain Mathur on Feb. 10. 1977 because all of them attended the funeral of Shri Ganesh Narain Mathur. It was further contended that even then for a long period appellants have taken no steps for impleading the heirs and legal representatives of deceased respondent No. 1, the appeal be disposed of having abated. At that stage, appellants moved an application on Sept. 4, 1981 under O. 22, R. 4, Civil P. C. for substitution. Before this application could be disposed of, one Prabhu Narain claiming the son of deceased respondent No. 1 Ganesh Narain Mathur moved an application under O. 1, R. 10, Code of Civil Procedure praying that he and others mentioned in the application be impleaded as heirs and legal representatives of deceased respondent No. 1 Ganesh Narain Mathur. To this a counter was filed by the 2nd respondent Mool Chand contending that the said application was not maintainable.

(3.) A Division Bench of the Rajasthan High Court held that the preliminary decree was one whole and indivisible and as shares have been defined by the preliminary decree, if the appeal is proceeded with in the absence of the heir and legal representatives of the deceased respondent No. 1 Ganesh Narain Mathur, it would result in inconsistent decrees and therefore, the appeal abates as a whole. The High Court rejected the application of the legal representatives of deceased respondent No. 1 Ganesh Narain Mathur moved under O. 1, R. 14, C. P. C. observing that the provisions of O. 1, R. 10 cannot override specific provisions of O. 22. As the limitation for taking action under O. 22 having long since expired, the consequence cannot be circumvented by resort to the provisions of O. 1, R. 10. So saying the High Court rejected the application of the heirs and legal representatives of deceased respondent No. 1 As a consequence, the High Court disposed of the appeal as abated as a whole. It is against this order that the present appeal is filed.