ACHHAR SINGH Vs. ANANTI

JUDGEMENT

(1.) ONE Natha Singh died on 7th January, 1951 and after his death a mutation of inheritance was sanctioned in the names of Buta Singh, Achhar Singh and other defendants being his nearest collaterals. Smt. Ananti claiming herself to be the daughter of the said Natha Singh deceased filed the present suit for possession against the said collaterals, namely, Buta Singh and others on the ground that she was a preferential heir of the said Natha Singh as against the said defendants and alleged that the revenue authorities wrongly and illegally mutated the land in their names. On 23rd of November 1962 the suit of the plaintiff, Smt. Ananti, was dismissed but against that judgment and decree she went up in appeal which accepted by the Additional District Judge, Amristar vide Judgment dated 25th of August 1964 and her suit was decreed and the judgment and decree of the trial Court were set aside. Regular second appeal now before me is directed against this judgment and decree dated 25th of August 1964 of the lower appellate Court at the instance of the defendants appellants. This appeal came up for hearing before me on 26th of March 1970 when a question was raised by Mr. Wasu, learned counsel for the appellant, that Mohan Singh defendant No. 6, died during the pendency of the first appeal before the lower appellate Court. Since no application for bringing the legal representatives of the said Mohan Singh deceased was filed, so the appeal before the lower appellate Court abated in toto and the judgment and decree of the lower appellate Court passed in ignorance of the factum of death of Mohan Singh, defendant No. 6 is a nullity. The counsel for the respondent was not in a position to assist the Court as he could not get instructions from his client, so I sent for a report from the lower appellate Court regarding the factum of death of Mohan Singh and the date of his death as also the effect of his death on the appeal before the lower appellate Court. The lower appellate Court has submitted its report and has found that Mohan Singh, defendant No. 6, died on 5th of May 1964 during the pendency of the appeal. At this stage, I may mention that I have verified from the record of the lower Court that on 21st of May, 1964 the hearing concluded and on that date the judgment was reserved. I am making mention of this fact only to show that the deceased in question died before the conclusion of the hearing and provisions of Order 22. Rule 6 of the Code of Civil Procedure are not applicable to this case. The factum of death and the date of death are not disputed before me by the learned counsel for the respondent. The learned lower appellate Court also gave it finding regarding the effect of death on appeal before the lower appellate Court and held that in its opinion the appeal as a whole had abated. Learned counsel for the respondent has urged that in fact the appeal did not abate in toto and the appeal abated before the lower appellate Court only partially. In view of the decision of their Lordships of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 SC 89, and a Division Bench decision of this Court in Swaran Singh Puran Singh v. Ramditta Badhawa, AIR 1969 Punj and Har 216, and also relying upon my own decision given in S. A. O. No. 36 of 1969 (Punj and Har), (Rehmat v. Mehar Ali Shah) decided on August 27, 1970, wherein on similar facts, I had held that the appeal cannot proceed without bringing the legal representatives of the deceased on the record against the surviving defendants or respondents. So, I do not find any merit in this contention of the learned counsel. That being the position, the decree passed by the lower appellate Court under appeal is a nullity and has to be set aside.

(2.) NOW the question arises as to whether this Court is to affirm the decree of the trial Court or after setting aside the ineffective decree of the lower appellate Court, the case should be sent back to the lower appellate Court where it will be open to the respondent to apply under the provisions of Order 22, Rule 9 of the Code of Civil Procedure for setting aside the abatement if that party is able to satisfy that Court that such legal right to have the abatement set aside still subsisted. A parallel position occurred in the Calcutta High Court reported in Kanailal Manna v. Bhabataran Santra, AIR 1970 Cal 99 and Anil K. Sen. J. speaking for the Court observed, as reported in paragraph 22 of the judgment as follows:" we are of the opinion that if we accept the contention of Mr. Ghosh and affirm the decree as passed by the trial Court we only take away a valuable right of the appellants before us to seek the remedy provided under law for setting aside the abatement consequent upon the death of one of the respondents. The statute has given him this right under Order 22, Rule 9 of the Code of Civil Procedure and it would not be just and proper to deprive the party of such a valuable right. If we have come to the conclusion that we are unable to entertain any application on behalf of the present appellants for having abatement, which has taken place in the court of appeal below, set aside it is but just and proper that we must at the same time see that he gets an opportunity to move the appropriate court with such a prayer. But if we, on the other hand, accepting the contention of Mr. Ghosh in the meantime, affirm the decision as passed by the trial Court we are afraid the Court of appeal below would no longer have any scope to entertain effectively any application for setting aside the abatement. In such circumstances in our opinion, the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely, the ineffective decree passed by the court of appeal below should be set aside and the appeal should be remanded to the said court, keeping it open to the appellants to move the said court for an opportunity to have the abatement set aside if the appellants could satisfy the said court that they are so entitled in law. In our opinion the decision relied upon Mr. Ghosh in the case of AIR 1919 Cal 410 does not really go counter to the view we have taken; we are further fortified in our conclusion by the underlying principle of the Bench decision of this court in the case of Abdul v. Lakhisree Mazumdar, AIR 1923 Cal 676. In that case abatement had taken place pending a second appeal in this Court and this court in ignorance of death decreed the second appeal and remanded the proceedings to the court of the District Judge, who however, considered the remand order to be wholly without jurisdiction because of the abatement and he further held that the decree as passed by the lower appellate Court prior to remand should be restored. On a fresh second appeal to this court Asutosh Mukerjee, J. condemned the procedure followed by the District Judge and held that the proper procedure should have been to report the fact to the Court which had passed the remand order in ignorance of the death. His Lordship further went on to allow the appeal, set aside the decree passed by the District Judge after remand to remand the case once more and then recall the same to the file of this Court so that it may be placed before the appropriate Bench which had decided the appeal on the previous occasion. In our opinion the procedure followed in the above case on principle is in consonance with the view we have taken. " I am in respectful agreement with the principle enunciated by Anil K. Sen, J. and therefore, I after setting aside the decree of the lower appellate Court as being ineffective and a nullity, send the case back to the lower appellate Court where the respondent, i. e. , Smt. Ananti who was the appellant before the lower appellate Court, can take steps to set aside the abatement, if she is so advised. The lower appellate Court should decide the matter in accordance with law. There is, however, no order as to costs. Order accordingly.