PAPPY Vs. CHERIYAN

JUDGEMENT

(1.) The above petitions are by the respondent in A. S. No. 86 of 1958. The respondent in that appeal was the sole plaintiff in O. S. No. 39 of 1957 of the Subordinate Judge's Court, Thiruvalla. The suit was filed for amounts alleged to be due from defendants 1 and 2 in that suit and others. A preliminary decree was passed for settlement, of accounts against defendants 1 and 2 and others. Though this was called a preliminary decree, the liability of defendants 1 and 2 was also fixed. An appeal, A. S. No. 86 of 1958 was taken by defendants 1 and 2 in the suit.

(2.) The first defendant - the first appellant died on 25th April 1962. An application, C. M. P. No. 6359 of 1962 was then moved by the second defendant second appellant in A. S. No. 86 of 1958. In that application, after stating that the appellant No. 1 had died it was averred that the right to sue had survived to the second appellant. It was therefore prayed that the second appellant be allowed to proceed with the appeal, after the court recorded that the right to sue had survived to the second appellant. The court passed an order 'recorded' on 7th September 1962. On 15th October 1962 I set aside the decree of the Trial Court and remitted, the case to the Trial Court on condition the appellants paid a sum of Rs. 250 towards the costs of the respondent. Costs were paid as directed. When the case was being proceeded with in the Trial Court the second defendant contended that the suit as against the first defendant had abated because the legal representatives of the first defendant had not been impleaded. The plaintiff thereafter moved an application for bringing the legal representatives of the first defendant on record. The court then passed the order sought to be revised in civil revision petition 258 of 1963 and that order is in these terms:

(3.) A specific case of the effect of the death of one of the appellants who had a distinct share was also considered by the Supreme Court in the decision in Rameshwar Prasad and others v. Shambehari Lal Jagannath and another ( AIR 1963 SC 1901 ) and therein also Their Lordships laid down the rule that the effect of the death of one of the appellants is that the whole appeal abated. It is not necessary to multiply more decisions. But it may be taken to be well established that in cases where a judgment proceeded on a basis common to all the appellants, the death of one of the appellants, even if it be that he had a distinct interest, is that the whole appeal would abate. I must therefore conclude that the appeal A. S. No. 86 of 1958 had abated on 25th July 1962. When the order 'recorded' was passed on 7th September 1962, there was no appeal and so it was when I passed the order of remand on 15th October 1962.