CHINTAMAN NILKANT Vs. GANGABAI

JUDGEMENT

(1.) The first point urged in this appeal is that Gangabai having died and no legal representative of hers having been brought on record the appeal abated, and that, therefore the Appellate Court had no jurisdiction to deal with the decree passed against Gangabai.

(2.) No doubt under Secs.362 and 582, Civil Procedure Code, the appeal abated so far as Gangabai was concerned, but under Section 544, Civil Procedure Code, Anpurnabai had a right to appeal independently of the provisions of Section 362 and 582 of the Civil Procedure Code, if her defence was common to her and Gangabai, and the mere fact of her having been joined with Gangabai would not take away her right to appeal. It was held in Chandarsang V/s. Khimabhai (1897) 22 Bom. 718, that "decree having been passed against the defendants, it was open to any one of them to appeal against it if the ground of appeal was common to all defendants and it was open to the lower Appellate Court to deal with the appeal under Section 544."

(3.) No doubt in the lower Appellate Court the appeal that was heard was the appeal of Anpurnabai, but in dealing with that appeal it was 5 open to the lower Appellate Court to hear and deal with the whole suit if the defence was common.