MAHAGU VISHWANATH HUSKE Vs. BHAGIRATHIBAI SHRAWAN HUSKO

JUDGEMENT

(1.) This is an application in revision by the surviving plaintiffs and the legal representatives of deceased plaintiffs from an Order passed by the Second Extra Assistant Judge, Nagpur, disallowing the objections of the applicants here, that the appeal had abated because no legal representatives of respondent No. 1 (plaintiff No. 1) were brought on record within the period of limitation. Their prayer was that the appeal had abated in so far as deceased respondent No. 1 was concerned.

(2.) FOUR plaintiffs had obtained a decree for possession of a house at Umrer on April 11, 1966 in the Court of the Civil Judge, Umrer. The defendants had filed an appeal against the decree in the District Court on May 5, 1966. The plaintiffs had filed cross -objections against the directions about the future mesne profits. The trial Court had not given any directions as to how the future mesne profit was to be recovered by the decree -holder. Pending the appeal respondent No. 1 (plaintiff No. 1) died leaving seven legal representatives. He died on October 11, 1966. On January 9, 1967, the last day for Substituting the legal representatives, the legal representatives of respondent No. 1 and the other respondents applied for substitution of the names of the legal representatives of respondent No. 1 in the cross -objections filed by the respondents. There was no application for substitution of the legal representatives of respondent No. 1 in so far as the appeal was concerned. However, the appellants (defendants) applied on January 25, 1967 for substitution of five legal representatives in appeal. The respondents and the legal representatives of respondent No. 1 objected and had contended that the appeal had abated so far as the deceased respondent No. 1 was concerned, because the legal representatives were not brought on record within the period of limitation. This matter was heard by the Second Extra Assistant Judge, Nagpur. According to him, the substitution of the legal representatives of respondent No. 1 in the cross -objections was as good as substitution of the legal representatives in the appeal and, therefore, the substitution in the cross -objections would enure for the benefit of appeal. Accordingly, therefore, he held that the appeal did not abate. This is the Order which is now challenged here by the applicants.

(3.) BUT the learned advocate for the applicants relies on Abdullamiya v. Mahomedmiya (1948) 51 Bom. L.R. 241 : A.I.R.[1949] Bom. 276 and Bakhtawari v. Sadhu Singh and argues on the basis of the propositions laid down in these two cases that the Order of the learned Assistant Judge is illegal. In Abdullamiya v. Mahomedmiya, the appeal had abated as the appellant died and the legal representatives were not brought on record within the time prescribed by law of limitation. The respondent had filed cross -objections to the appeal and it was contended that although the appeal had abated, the respondent had a right to have his cross -objections heard, since he had brought the heirs of the appellant on record for the purposes of the cross -objections. The learned Judges in that case considered Section 526, Civil Procedure Code (under the old Code) which contained the corresponding provisions as in Order XLI, Rule 22, Sub -rule (4). His Lordship Chief Justice Chagla observed in that short judgment that, under Sub -rule (4) when an appeal was withdrawn or was dismissed, the cross -objections may nevertheless be heard and that, therefore, the original rigour of the law (as provided in the old Code of 1882 in Section 561) had been relaxed but it had been relaxed, only to this extent, viz. in the two eases laid down in Sub -rule (4), of Rule 22 of Order XLI, Civil Procedure Code. These two cases were : (1) where the appeal was withdrawn, and (2) where the appeal was dismissed. It was observed that there was no provision in this rule for a case of an abatement of an appeal. Therefore, it was observed that the Legislature did not intend that cross -objections should be heard when the appeal had abated. Under the circumstances, as that case was not a case of withdrawal of an appeal or a dismissal of an appeal, but was a case of an abatement of an appeal, the respondents there were found to have no right to have their cross -objections heard. Therefore, the question whether an appeal would abate or would not abate because of the substitution of legal representatives in the cross -objections did not pointedly arise in that case at all. The appeal there was taken to have abated as the appellant had died and as the legal representatives were not brought on record and in that background, a question arose as to whether the cross -objections could be heard or could not be heard. The point which has arisen in the application before me was not there before his Lordship in that case. That also appears to be the case in Bakhtawari v. Sadhu Singh. The Punjab High Court relied upon Abdullamiya v. Mahomedmiya and found that the cross -objection could not be heard if the appeal had, in absence of legal representatives on record, abated.