KANJI MOORARJI Vs. SRIPATI VENKATARAMANA HEGDE

JUDGEMENT

(1.) The principal question that arises in this civil revision petition is whether the dismissal of an appeal as having abated consequent upon the legal representatives of one of the respondents therein not having been brought on record amounts to a "decree passed in appeal" within the meaning of S. ICO of CPC admitting of second appeal to this Court and whether a revision petition under S. 115 of the Code is not maintainable,. This matter has come up before us upon a reference by Srinivasa Iyengar, J., as in his Lordship's view there is conflict of judicial opinion between two pronoucements of this Court in Vishnumoorthi Bhagwatha v. Rudra Shedthi ((1973) 2 Kar.L.J. 395.) and Mangala Bai v. Sayyad Fakir ((1975) 2 Kar.L.J, 140.) .

(2.) Facts necessary for the disposal of this civil revision petition, briefly stated, are: Sripathi Venkataramana Hegde, first respondent in this civil revision petition, instituted O.S. 13 of 1970 on the file of the Civil Judge, North Kanara. against a firm of partners carrying on business under the name and style "M/s. Kanji Moorarji" for recovery of a sum of Rs. 12,324-73 with costs, current and future interest. The said firm is the first petitioner herein. Petitioners 2 to 8 herein were defendants 7, 3, 4, 5, 6, 8 and 9 respectively in the suit. These defendants, along with one Vallabhadas Vasanji, defendant-2 in the suit were impleaded in the suit on the allegation that they were partners of the first-respondent firm. The suit ended in a decree. Against the said decree, only two defendants viz., Defendants 1 and 7 preferred an appeal before the District Court, North Kanara, in R.A.No. 256 of 1973. Plaintiff was respondent-1 in the said appeal, respondents 2 to 8 therein being the other defendants who did not join in the filing of the appeal and arrayed as respondents. During the pendency of R.A. 256 of 1973, Vallabhadas Vasanji, who was defendant-2 in the suit and respodent-2 in that appeal, died. Thereafter Sripati Venkaitairamana Hegde, plaintiff who- was respondant-1 in the; appeal, made an application, I.A. II, in the appellate court urging that the legal representatives of the said Valla- bhadas Vasanji, respondent-2 in the appeal not haying been brought on, record ,the appeal against him sjtood abated; that in the, circumstances, the court could not a(lso proceed with the appeal as against the other respondent also as such a course might result in a conflict of decisions, and that therefore the entire appeal as against all the respondents should be dismissed. The appellant court accepted this contention and allowed I.A.II by its order dated 18-9-1974; in consequence, the appeal came to be dismissed. In this civil revision petition all the original defendants-except, of course, defendant no. 2 who died during the pendency of the appeal-challenge the correctness of the order of the appellate court on I.A. II and the consequent dismissal of the appeal.

(3.) We have heard Sri.T.S.Ramachandra, learned counsel for the petitioners and Sri K. I. Bhatta, learned, counsel for the respondent. On the contentions urged before us in this revision petition, the two questions that fall for determination, are:-