AMARSANGJI INDRASANGJI Vs. DESAI UMED

JUDGEMENT

(1.) As regards Second Appeals Nos. 554, 634, 642 and 653 of 1922 a rather curious technical position has arisen. In all these cases there was a sole defendant, and the judgment of the trial Court was against that sole defendant. In each of the four cases the sole defendant appealed, but before the appeals came on for hearing he in each case died. But in each case his legal advisers appear to have been unaware of the fact, and accordingly the appeal was allowed to be heard and decided in favour of the defendant inasmuch as the lower appellate Court was in ignorance of the fact that the defendant had in fact in the meanwhile died. So, too, the plaintiffs in each suit were apparently unaware of the fact, and they presented second appeals to this Court in these suits as well as in the remaining twenty-nine companion suits. We have since heard and dismissed the plaintiffs appeals in these twenty-nine companion suits.

(2.) We are now asked by the plaintiffs to say that the judgment of the lower appellate Court in the above four suits cannot stand, inasmuch as in fact the suit or the appeal had abated before the appeal was heard. Mr. Coyajee as amicus curiae has been good enough to refer us to certain sections of the Code, and has also pointed out that the course - taken in the trial Court was this, as stated by the trial Judge :- The plaintiffs in this suit and suits Nos, 289 to 295 and 297 to 321 are the same, and the defendants in all the suits who are descendants of the original cultivators have common contentions and so the parties have put in purshia that evidence should be led in this suit and it is to guide all the other suits. The Court has, therefore, put in copies of the findings and reasons of Suit No. 288 "in all the other suits.

(3.) It was accordingly suggested to us that that order in effect amounted to a consolidation order, and therefore under Order XLI, Rule 4, it was open to any of the defendants to appeal, and that on such appeal the appellate Court might reverse or vary the decree in favour of all the plaintiffs or defendants as the case might be. Alternatively under Order XLI, Rule 33, there is also a power for the appellate Court to discharge an order of the Court below in its entirety, notwithstanding that only some of the defendants may have appealed. But in my judgment both rules 4 and 33 of this Order only apply to a suit ", and therefore it is essential for its application that the thirty-three suits in the present case should be regarded as consolidated. In the view I take, it is perfectly clear here that no consolidation order was made, So far from there being any real consolidation, there appear to have been separate decrees passed in each of these thirty-three suits Accordingly those Orders do not, I think, help us here.