FIRANGI RAM MODI Vs. BASUDEO MODI

JUDGEMENT

(1.) This appeal fails on the preliminary ground of abatement. It appears that the appellants were defendants in a suit for account brought by the respondents. The suit was decreed and the appellants preferred an appeal in the Court below. While the appeal was pending, it was stated by the respondent that the appeal had been compromised and on investigation it was found that the compromise had been in fact arrived at and therefore the suit was disposed of by the appellate Court on the terms of the compromise. Thereafter the appellants preferred this appeal to this Court. This appeal admittedly has abated as against respondents 4 to 8 who are minors. The question is what is the effect of this abatement upon the appeal as against the other respondents. It is not denied that the shares of the respondents are unascertained.

(2.) That being so, this case falls within the rule laid down in Rajeswari Prasad Singh V/s. Saheb Singh A.I.R. 1939 Pat. 198 where it has been pointed out that under no circum-stances can a decree be affirmed as to the unascertained shares of some joint shareholders and reversed as to the unascertained shares of the other joint shareholders. It is quite clear that if the decree of the Court below is modified as against the present respondents there will be two contradictory decrees, one against the present respondents and another in favour of the respondents against whom the appeal has abated. Such being the case, the appeal must be deemed to have abated as a whole. Mr. Sinha who has argued the case with his usual ability referred us to Mahomedally Tyebally V/s. Safiabai where it was held that for the purpose of giving effect to the rights of the parties in an administration suit it is open to the Judge in his discretion under Order 1, Rule 10, Civil P.C., to add as a party the representative of a person against whom the suit has abated.

(3.) In that case the representative of the person against whom the suit had abated had herself applied for being made a party. Here the position is quite different.