JOYGNORAM PATWA Vs. DAYARAM DAS

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract of sale. The claim was decreed in the Courts below. The learned trial Judge directed defendants 6 and 7 to execute a sale deed in favour of the plaintiff after the balance of the money due from him had been deposited in Court. In appeal the learned Judge modified the decree of the trial Court and while decreeing plaintiff's claim to the specific performance of the contract of sale directed that on plaintiff's depositing the balance of the money due from him by the due date defendants l, 2, 3 and 4 shall execute a deed of sale within a month of the deposit and withdraw the money, the question of adjustment of dues between defendants 1-4 and defendants 6-7 was left open. Three out of the defendants appealed from the decree. Jitram defendant 2 died during the pendency of the appeal. His legal representatives were not brought on the record within the period allowed by the law of limitation. His appeal has abated. An application for setting aside the abatement was made but this was disallowed. It is not (sic) contended on behalf of the plaintiff-respondent that the appeal has abated in its entirety. It is clear that the decree was against defendants 1 to 4. It was joint and indivisible. It directed all the four defendants to execute a sale deed on plaintiff depositing the balance viz., Rs. 114-9-0. In these circumstances the appeal cannot be heard in the absence of one of the necessary parties to the appeal. Mr. Barua on behalf of the defendant-appellants contends that the decree is no doubt joint and indivisible but it is open to the Court under Order 41, Rule 4 to set aside the decree as it proceeds on a ground common to all the defendants. The decree he urges could be reversed in favour of all the defendants at the instance of any one of them. The contention raised has been considered by a Division Bench of this Court in Aravinda Sarma Vs. Payodhar Barua, S. A, No. 941 of 1944 :, (1950 AIR(Gau) 53) It was held that Order 22, Rule 3 was not qualified by Order 41, Rule 4 which could only apply to a properly constituted appeal. Where one of the necessary parties to the appeal was not before the Court, the provisions of Order 41, Rule 4 could not be invoked. This view was based on a Full Bench case from the Patna High Court reported in Ramphal Sahu Vs. Satdec Jha, 1940 AIR(Pat) 346, and a Division Bench Court of the Sind Chief Court reported in Ghulam Mahomed Vs. Sher Din Khan, 1942 AIR(Sind) 157. The judgment in the case decided by this Court was delivered by me and I am still of the view taken in that case. Order 41, Rule 4, therefore, does not avail the appellants.

(2.) The learned Counsel concedes that if the decree could not be set aside at the instance of appellants, who are alive, it being joint and indivisible, the abatement would be entire and total. In these circumstances I hold that the appeal has abated and is dismissed.

(3.) I make no order as to costs in this Court.