KALI PRASAD SRIVASTAVA Vs. TULSHI PRASAD

JUDGEMENT

(1.) This is a miscellaneous appeal directed against an order of the Subordinate Judge of Hazaribagh rejecting an application under Section 47, Civil P. C. filed by the present appellants in Execution Case No. 32 of 1950 pending before the said Subordinate Judge. The decrea which is sought to be executed in the said Execution Case is a decree for partition and for recovery of certain sums as costs, etc. The present appellants filed an application before the learned Subordinate Judge stating that the decree had become time-barred and that the application for execution was, therefore, not maintainable. This application was rejected by the learned Subordinate Judge, and hence the judgment-debtors-objectors have preferred this appeal.

(2.) On account of want of service on respondent 15 the appeal stood dismissed against him on 2-1-1953, and the question has, therefore, arisen as to whether the whole appeal has become incompetent. Because of Standing Order No. 1 of 1953 it has to be determined by the Bench immediately after the order of dismissal has been signed as to whether the appeal has become incompetent as a whole or not.

(3.) On behalf of the appellants it has been contended that they only being the objectors before the Court below and the respondent 15 being not one of the decree-holders-respondents, the dismissal of the appeal against respondent 15 will not make the whole appeal incompetent. Counsel for the appellants placed reliance on certain decisions of this Court as well as on a decision of the Judicial Committee reported in --'Mahomedally Tyebally v. Safiabai', AIR 1940 PC 215 (A). The Privy Council decision is, in my opinion, not at all a decision in point. The case before their Lordships was a case concerning the administration of an estate, and their Lordships observed that it not uncommonly happens in a suit for administration that for one reason or another a particular interest is not represented before decree, but is either provided for by the decree, or is asserted at a later stage under the decree, or is given effect by a party being permitted to attend certain accounts and inquiries so as to be bound by the result. It was concerning such a suit that their Lordships pointed out that it was open to the Judge in his discretion under Order 1, Rule 10, to add a party against whom the suit had abated for the purpose of giving effect to the rights of the parties. These facts can have no resemblance to the facts of the present case, and the principle laid down by their Lordships cannot be regarded as a principle of universal application. The decision of this Court on which reliance has been placed by the learned Counsel is the one reported in -- 'Radhamonan v. Shreekrishna', AIR 1948 Pat 460 (B), and our attention has been particularly drawn to the following passage in the judgment: "There is nothing whatever in the terms of B. 4 to suggest that the persons, who did not appeal, must be impleaded as respondents, and were it necessary, one would expect words to that effect in the rule. In Rule 33 there is, as I have already indicated, a direct indication to the contrary effect. Neither rule offends the principle that an order cannot be passed to the prejudice of a person in his absence, because the terms of each rule carefully and expressly limit its application to orders in favour of the absent person so that no question of any objection by him being shut out can arise." On the basis of this observation it was argued that either under Rule 4 of Order 41 or under Rule 33 Of that Order the appeal should be allowed to proceed against the remaining respondents, inasmuch as the decision made in this appeal cannot be to the prejudice of respondent 15 against whom the appeal has been dismissed. In other words, the learned Counsel has urged that because respondent 15 was also a defendant and a judgment-debtor in the original suit, and because he did not prefer any objection in the execution proceeding it is not at all material if he is not made a party to this appeal. But it seems to have been overlooked that the decree which is sought to be executed is a decree in a partition suit and that respondent 15 was in the position of a plaintiff in the suit. He like any plaintiff of the partition suit can seek to enforce the decree passed in the suit. It need hardly be pointed out that every defendant in a suit for partition is in the position of a plaintiff, and he can ask for a separate 'patti' with regard to his share and thus can seek the execution of the partition decree. Respondent 15 is, therefore, in a position to seek an execution of the decree passed in the partition suit, and in every action for partition, all persons interested in the joint properties must be made parties, so that allotments may be made in presence and according to the conveniences of all of them. Though this respondent was not one of the judgment-debtors he can seek an execution of the partition decree, and because this present appeal stands dismissed, against him, he would be able to seek an execution of the partition decree even if this appeal ultimately succeeds and it is found that the decree is not executable as it is time-barred. Therefore, it is manifest that if this appeal succeeds, two inconsistent situations will arise. Respondent 15 will be able to execute the decree, and the other respondents will not be allowed to execute the decree, because as against them the decision will be that the decree is time-barred. The question whether the interest of the respondent against whom the appeal stands dismissed still survives must depend on the nature of the litigation, the decree passed, the subject-matter of the appeal and the effect of the decision in appeal in their absence. It is indisputable that because this respondent is in the position of a plaintiff his interest will remain unaffected whatever be the decision in this appeal. In this view of the matter, I am of opinion that the whole appeal has become incompetent. In the decision of this Court referred to above certain observations had been made against the Pull Bench decision of this Court in -- 'Ramphal Sahu v. Stadeo Jha', AIR 1940 Pat 346 (PB) (C). The ratio decidendi of the Full Bench decision is that where all the plaintiffs or defendants appeal from a decree and the decree appealed from proceeds on a ground common to all the plaintiffs or defendants and one of them dies and no substitution is effected within time, and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused, the appellate Court has no power under Order 41, Rule. 4, Civil P. C. to reverse or vary the decree in favour of all the defendants. It has further been held in this case that Rule 4 of Order 41 cannot override or create an exception to Order 22, Rr. 3 and 11, and in the case of one or more appellants dying even where a decree proceeds on a ground common to all the matter must be governed solely by the provisions of those latter rules, It was pointed out in this case that to hold otherwise will be to hold that Order 41, Rule 4 gives the Court the power to set aside an abatement and to reverse or vary a decree which has become final against the deceased appellant. On analogy, the decree which has been passed by the learned Subordinate Judge in this case has become final so far as respondent 15 is concerned, and the learned Counsel for the appellant was, therefore, wrong in asking us to apply Order 41, Rule 4 in this case. Meredith J. who delivered the judgment in -- 'AIR 1943 Pat 460' (B) while referring to this Full Bench decision observed as follows: