MUKUNDILAL Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS order disposes of a preliminary objection raised by the respondent that the appeal abates due to the failure of the appellants to bring on record the names of the legal representatives of the deceased appellant No. 2 Mukundilal.

(2.) THE question whether the appeal abates, partially or as a whole, depends on the nature of the suit and the circumstances of each particular case. The appeal arises out of a suit for sale on the foot of a mortgage. As a matter of principle, if there is partial abatement, the appeal in such suit necessarily abates as a whole [see Ghanaram v. Balbhadrasai (1938 NLJ Note 22=air 1938 Nag 42=ilr 1938 Nag. 370)]. The question, whether there is partial abatement of the appeal, therefore, assumes importance.

(3.) HAVING heard the learned counsel, we are clearly of the opinion that there was no partial abatement of the appeal due to the failure of the appellants to bring on record the names of the legal representatives of the deceased appellant No. 2 Mukundilal, as the right to continue the appeal "survives" to the remaining appellants under Order XXII, rule 2 read with rule 11 of the Code of civil Procedure. The word "survives" in that rule comprehends not only cases of survivorship in a strict or technical sense but also cases as to devolution by succession and inheritance. The plaintiff alleges in paras. 2 and 6 (d)of the plaint that the defendants formed a joint Hindu family and were carrying on business in the name and style "m/s Govinddas Mukundilal" of which the defendant No. 1 Govinddas was the Karta. The mortgage in suit was executed by Govinddas in his capacity as such. The plaintiff further alleges that the mortgage debt was a joint family debt which was liable to be satisfied by sale of the mortgaged property and other properties of the joint Hindu family. In such a suit, the other coparceners were not necessary parties, as they were effectually represented by the defendant No. 1 Govinddas as the karta [see, Kishan Prasad v. Ear Narain Singh (ILR 33 All 272 PC); Sheo Shankar v. Jaddoo Kunwar (ILR 36 All 383 PC)and Ganpat Lal v. Bindbasini Prasad (ILR 47 Cal 924 PC) ]. In Kishan Prasad v. Har Narain Singh, their Lordships of the Privy Council stated that where a suit is brought on a mortgage by or against the manager of a joint Hindu family in his representative capacity, the other members of the family are not necessary parties to the suit, and that the suit will not fail by reason of the non-joinder of those members. In Sheo Shankar v. Jaddoo Kunwar, a foreclosure decree was passed against a manager of the joint Hindu family. The other members brought a suit to set aside the decree on the ground that their non-joinder as persons interested in the equity of redemption under section 85 of the Transfer of property Act, made the decree ineffective. Their Lordships held that the decree was, in the circumstances of the case, binding upon them, though they were not parties to the suit. Their Lordships stated as follows :-