NATHU Vs. LAXMI NARAIN

JUDGEMENT

(1.) THE second appeal before me was lodged by four appellants Nathu, Ramdeo, Gokul and Hira on 5-4-71. During the pendency of the appeal Nathu one of the appellants, expired and learned counsel for the respondent moved an application for holding that the entire appeal has abated, as the appellant Nathu was survived by two female heirs who had not been brought on record within the period of limitation. Learned counsel maintains that as Nathu was one of the appellants and the decree against all the appellants proceeded on a ground common to all, the appeal abates in its entirety.

(2.) LEARNED counsel for the appellants contested this position. It was, however, admitted by him that Nathu had expired in February, 1972 and he had left behind two female heirs who were not brought on record within the period of limitation. LEARNED counsel, however, submits that according to the latest pronouncements of their Lordships of the Supreme Court in Ratanlal vs. (Firm) Lalmandas (l) and Mahabir Prasad vs. Jageram (2), the last mentioned case being followed by this Court in Hanuman vs. Shakru (3), the appeal cannot be said to have abated and could be prosecuted by the surviving appellants even for the benefit of the legal representatives of the deceased Nathu. LEARNED counsel also placed reliance on Misrilal vs. Surji (4 ).

(3.) THEIR Lordships of the Supreme Court had occasion to examine this question in Rameshwar Prasad vs. Shambehari Lal (7 ). THEIR Lordships made the following observations regarding the principle underlying the provisions of Order 41 Rule 4 : "the principle behind the provisions of ft. 4 of O. 41, C. P. C, seems to be that any one of the plaintiffs or defendants, in filing an appeal as contemplated by the rule, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant. " Then as regards the respective domains of Order 41 Rule 4 and Order 22 Rule 9, their Lordships observed as follows : - "the provisions of O. 41, r. 4 do not override the provisions of O 22, r. 9, C. P. C. Such a question cannot arise. The two deal with different stages of the appeal and provide for different contingencies. R. 4 of O. 41 applies to the stage when on appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the appellants the provisions of O. 41, r. 4 become unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of R. 9 of O. 22 and those of R. 4 of O. 41, C P. C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the others. " THEIR Lordships pointed out that where one of the several appellants dies and the appeal abates as against him under Order 22 Rule 3, the Court has no power to proceed under Order 41 Rule 4 Civil Procedure Code. The contrary opinion held in the Bombay, Calcutta and the Madras High Courts in Shripal Balpal vs. Nagu Khushaba (9), Satulal vs. Asiraddi (lo) and Somasundaram vs. Vithilinga (ll) was overruled. THEIR Lordships also adverted to Order 41 Rule 33 and observed that the discretionary power under this rule cannot be exercised to nullify the effect of abatement of appeal. In this case their Lordships approved the view prevalent in the majority of the High Courts namely, Ramphal Sahu vs. Satdeo Jha (12) Aminchand vs. Baldeo Sahai (13), Baijnath vs. Ram Bharose (14), Nanak vs. Ahmad Ali (15), Pyarelal vs. Modi Sikharrhannd (16), Venkata Ram Rao vs. Narayana (17) and Sonahar Ali vs. Mukbul Ali (AIR 1956 Assam 164 ). The position was re-itorated in Sri Chand vs. Jagdish Pershad (8 ). 10. Now I may refer to the two Supreme Court cases cited by learned counsel for the appellant with a view to seeing whether they laid down a different rule.