NARAYAN Vs. KUTARIA

JUDGEMENT

(1.) This appeal was admitted on the following substantial question of law:-

(2.) Being aggrieved by the judgment' dated 24/03/2005 passed by ADJ, Manawar, Dhar whereby judgment dated 14/10/2004 passed by Civil Judge, Class-II, Manawar in civil suit No. 12-A/2002 whereby suit filed by the respondent No. 1 was decreed was maintained, present appeal has been filed.

(3.) Learned counsel for the respondent No.l submits that respondent No.l was the plaintiff in the original suit and there were 15 defendants in the suit. It is submitted that Salam was defendant No. 7 whose L.Rs. were brought on record. So far as Mulabai is concerned, learned counsel submits that she was defendant No. 15 in the original suit and was not contesting defendant. It is submitted that in case where the defendant is not contesting then it cannot be said that decree is nullity. For this contention reliance is placed on a decision in the matter of Kanhaiyalal Vs. Rameshwar, 1983 AIR(SC) 503 wherein in a case of death of one of the respondents judgment-debtors whose legal representatives were not brought on record in time Hon'ble Apex Court held that it does not result in abatement of appeal as the judgment-debtor died was proforma respondent against whom no relief was claimed and in absence of whom appeal can proceed. Further reliance is placed on a decision in the matter of Babu Sukhram Singh Vs. Ram Dular Singh, 1973 AIR(SC) 204 wherein in a case of joint claim against defendants and there was failure to implead legal representatives of deceased defendant in appeal Hon'ble Apex Court has held that appeal abates against all, as a whole. LEARNED counsel submits that in the present case claim was not against those respondents, therefore, appeal does not abate. On the strength of aforesaid position of law learned counsel for the respondent No'.l submits that appeal filed by the appellants be dismissed.