SHAMBHATTA M. Vs. MENA RAMAKRISHNA BHATTA

JUDGEMENT

(1.) LEARNED counsel for the second respondent raises a pre­liminary objection and that is about the sustainability of this appeal when one of the appellants is found to have died during the pendency of the appeal and the appeal has abated as against him.The defendants in a suit for declaration of title,having failed in their contention as to absence of title in the plaintiffs and also bar of limitation for the suit,have filed this Second Appeal.During the pendency of the appeal 4 th appellant died and his legal representatives have not been impleaded.Whether the appeal could be disposed of on the merits,nevertheless,is the question raised here.

(2.) IT is true that one or more of the defendants could have filed an appeal to this Court against the decree of the court below and the variation or reversal in appeal would have enured to the benefit of the non -appealing defendants also.This is by reason of the provision in Order 41 rule 4 which reads as follows:

(3.) THE rule indicated in the case that was before the Supreme Court in Rameshwar Prasad v. Shambehari Lal A.I.R.1963 S.C.1901 is directly applicable to the facts of this case.In that case,during the pendency of an appeal one of the nine plaintiffs -appellants,Kedar Nath,died.His legal representatives were not brought on record and the appeal abated as against him.The question that arose was whether the appeal could be continued notwithstanding that abatement and whether relief could be granted to the surviving appel­lants.It was urged in that case that the surviving appellants could have instituted the appeal against the entire decree in view of the provisions of Order 41 rule 4 of the Code of Civil Procedure and therefore they were competent to continue the appeal even after the death of Kedar Nath and after the abatement of the appeal as against him.It was urged in that case that even if one of the plaintiffs had filed the appeal it could have enured the benefit of the other appellants and if so there was nothing to prevent the court from varying the decree in appeal notwithstanding the abatement as against one of the appellants,as the other appellants survived to prosecute the appeal.The Supreme Court did not agree with this contention and referring to Order 41 rule 4 the court said thus: