STATE OF RAJASTHAN Vs. MUKAT BEHARI

JUDGEMENT

(1.) THIS appeal against the plaintiff- respondent Mukat Behari was already dismissed as having abated on 12. 9. 2000. Later on, an application for setting aside that abatement was rejected by this Court on 12. 4. 2002 as the plaintiff-respondent Mukat Behari died on 17. 6. 99 and the appellant State did not take any steps for bringing on record legal representatives of said deceased plaintiff-respondent Mukat Behari. Therefore, the sole question which may be seen is as to whether the appeal as a whole stands abated against the other co- defendants or not.

(2.) NOBODY was present on behalf of appellant State. Mr. G. K. Garg, learned counsel appearing for the respondents has invited the attention of this Court towards the various judgments in support of his submission that the nature of decree in the present case in a suit filed for declaration and permanent injunction is of a joint and inserverable nature and, therefore, the whole appeal should be dismissed as having abated. Firstly he relies upon the judgment of Hon'ble Supreme Court in State of Punjab vs. Nathu Ram reported in AIR 1962 SC 89, wherein the Hon'ble Supreme Court observed that when O. 22 R. 4 CPC does not provide for the abatement of the appeals against the co- respondents of the deceased respondent, there can be no question of abatement of the appeals against them. The only question is whether the appeal can proceed against them. The provisions of O. 1 R. 9 CPC also show that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. The Hon'ble Supreme Court laid down the test for determination in the following term, "the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed. "

(3.) THUS it seems to be clear position of law that appeal is a whole would abate, if the decree is of a joint or inseparable character. In this case, since the trial Court decreed the suit of declaration of the sole plaintiff-respondent and appeal of the State against that plaintiff-respondent as abated, the appeal against the remaining respondents cannot be allowed to proceed as it may result in conflict of decree. The appeal as a whole abates and is liable to be dismissed.