SHAMSHER SINGH Vs. SAHIB DIAL ALIAS SHIBU

JUDGEMENT

(1.) The first question in this appeal which falls for determination is that of abatement. Debi Singh respondent No. 6, died on or about 18th April, 1957 and an application for bringing on record his legal representatives was filed on 18th August, 1958. The only ground given for excusing this delay is that the petitioner came to know of Debi Singh's death on 15th July, 1958 and the deceased being out of the village on account of treatment, the appellant could not remain in touch with him. This ground, in our opinion, is not sufficient, with the result that the appeal abates as regards Debi Singh deceased. Maha Nand, according to the appellant, died on 27th July, 1959 and an application for bringing on record his legal representatives was made on 26th October, 1959 which would be within limitation, if the date of death, as given in the application, is correct. The respondents have, however, urged by means of an affidavit that Maha Nand had died on 8th June, 1959. In support of this affidavit, a certified copy of the entry from the death register has also been produced. Obviously, no reason has been assigned for the delay, with the result that this application must also be disallowed and the appeal must be held to abate as regards Maha Nand as well.

(2.) Mst. Parbati, one of the appellants, had died on 12th January, 1962. An application for bringing on record her legal representatives was filed on 22nd May, 1963 but it is clear that some of her representatives were already on the record, with the result that her estate must be held to be substantially represented, and consequently the application in regard to her legal representatives must be allowed. In regard to Indar Mal, it is stated that he was residing at Calcutta where he died on 23rd August, 1958. Admittedly, the mutation regarding his estate has not yet been entered and it is affirmed on behalf of the appellants that they acquired knowledge of his death on 14th July, 1964. In view of the fact that the deceased was in Calcutta and mutation in regard to his landed property has not yet been entered, we are entered, we are satisfied that there is sufficient ground for the appellants in not making the application for bringing the legal representatives of the deceased on the record till 23rd July, 1964, the date of the application. Reference to Union of India V/s. Ram Charan, 1964 AIR(SC) 215on which the respondents have placed reliance, does not justify disallowance of this application.

(3.) The question then arises whether the appeal abates in toto on account of legal representatives of Devi Singh and Maha Nand not having been brought on the record. The legal position appears to me to be fairly settled. According to the provisions of the Civil Procedure Code, an appeal does not abate as against the parties on the records; the abatement takes effect only qua the deceased party whose legal representatives have not been brought on the record within the prescribed period. The question has to be considered from the point of view, as to how far it is possible to deal with the matter on appeal as between the parties present on the record in the absence of the deceased or his legal representatives. Would the decree to be passed come into conflict with the decree against the deceased, which has become final as a result of the abatement of the appeal against him ? If it would, then can the Court proceed to determine the controversy and be instrumental in making two conflicting decrees ? I, think, it cannot. It is a matter of common sense that a Court must avoid making conflicting or contradictory decrees in the same litigation in respect of the same subject matter. It is indisputable that the decree against the deceased whose legal representatives are not on the record cannot be modified to his prejudice or to the prejudice of his estate which is unrepresented, directly or indirectly. If the decree to be passed on appeal is going to have that effect then the appellate Court would in my view stay its hands and decline to proceed with the appeal even as against the parties on the record. The question, which, therefore, would face the Court is as to how far the decree appealed against is joint and indivisible. In case the appeal as against the deceased persons cannot be separated from the appeal affecting the parties on the record, then the Court of appeal would not find it possible to proceed to adjudicate on the appeal even as against the parties on the record. This would, of course, have the effect of virtual abatement of the appeal in toto. The question must, therefore, from its very nature fall for decision on the facts and circumstances of each case, it being difficult, if not possible, to lay down any general rule of universal application, which may cover all contingencies. As this view seems to me to be settled on high authority, it is unnecessary to refer in detail to the decisions of the various High Courts cited at the bar : State of Punjab V/s. Nathu Ram, 1962 AIR(SC) 89, may, however, be seen in this connection.