AMBIKA PRASAD SINGH Vs. THAKUR PRASAD SINGH

JUDGEMENT

(1.) It is unfortunate that this appeal has to fail on a preliminary point. The plaintiffs-respondents first party filed a suit for specific performance of contract of sale by the defendants first party (respondents second party) in favour of the plaintiffs. In this suit the defendants second party (defendants Nos. 2 to 8) were impleaded as the contract was sought to be enforced against them also on the plea that they were subsequent purchasers of the properties in question with notice of the contract in favour of the plaintiffs. The suit was decreed by the trial court and the defendants were directed to execute and register a deed of sale in favour of the plaintiffs on payment of Rs. 77,000 by the latter to the former. Defendant Nos. 2 to 8 filed on 71-48 the present First Appeal No. 17 of 1948. Thereafter two more first appeals were filed. First Appeal No. 37 of 1948 was filed by the defendant first party and First Appeal No. 72 of 1948 was filed by the plaintiffs against such portion of the decree which was against them. The hitter two first appeals have failed for non prosecution on one ground or the other; and we are now concerned with First Appeal No. 17 of 1948.

(2.) Ambika Prasad Singh, appellant No. 1, died in June 1956, during the pendency of this first appeal and on the 17th of September 1956 an application was filed by the surviving appellants for substitution of the three sons of the deceased in his place. The plaintiffs-respondents objected to their substitution on two grounds, firstly, that the application was out of time as, according to them, Ambika Prasad Singh died on the 17th of June 1956; secondly, on the ground that Ambika Prasad Singh died leaving behind not only the three sons sought to be substituted but also a widow and daughters. The stand taken on behalf of the appellants was that Ambika Prasad Singh died on the 18th June 1956, and, the ninetieth day being a holiday, this application filed on the ninety first day was in time. Their further case was that the widow had relinquished her entire interest in the disputed properties in favour of her three sons, and the learned counsel for the appellants could not state definitely on 3-1-57 when this matter was taken up as to whether Ambika Prasad Singh had left any daughter or not. In this view of the matter, this Court, by order dated 3-1-57, directed an enquiry to be made on the disputed questions, namely :

(3.) When the appeal came up for hearing before us, learned counsel for the remaining appellants and the plaintiffs respondents addressed us at great length on the preliminary point as to whether the whole appeal has become incompetent by reason of the abatement of the appeal of Ambika Prasad Singh or whether the appeal could be heard on merits and, if thought fit, relief could be given to the appellants as well as to the legal representatives of the deceased appellant, Ambika Prasad Singh, under the provisions of Order 41, Rule 4 of the Code of Civil Procedure. Mr. P.R. Das could not contend on behalf of the appellants that the decree was not a joint and indivisible decree and that relief could be given to the remaining appellants separately without touching the decree which was passed against Ambika Prasad Singh. Rut he contended that this was a fit case where the Court could and should exercise its power under Order 41, Rule 4 of the Code of Civil Procedure and should reverse or vary the decree in favour of all the defendants, irrespective of the question whether all and/or their legal representatives were now before the appellate court or not. He conceded that the Full Bench decision in Ramphal Sahu v. Satdeo Jha, I L R 19 Pat SC : AIR 1940 Pat 346 (A), was directly against his contention; but he submitted that the case was wrongly decided and the question should be referred to a larger Bench for reconsideration of the view expressed in that case, or we should exercise our inherent powers under Section 151 of the Code of Civil Procedure or our powers under Order 41, Rule 33 of the Code, as was ultimately done in the first appeal of the Full Bench case by Harries, C. J., and Manohar Lall. J., who finally heard the first appeal, and should give relief to the appellants as well as to the legal representatives of Ambika Prasad Singh.