MISCELLEANEOU APPEAL UNDER ORDER 43 RULE 1(k) OF CODE OF CIVIL PROCEDURE, 1908.

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1 1 HIGH COURT OF CHHATTISGARH SINGLE BENCH: HON BLE SHRI SANJAY K. AGRAWAL, J Miscellaneous Appeal No. 998/2006 APPELLANTS (Defendants) RESPONDENTS (Plaintiffs) VERSUS Bhonglu and another Baisakhin Bai and others MISCELLEANEOU APPEAL UNDER ORDER 43 RULE 1(k) OF CODE OF CIVIL PROCEDURE, Appearances of counsel:- Mr. Manoj Paranjpe, learned counsel for the appellants. Mr. Sanjay S. Agrawal, learned counsel for the respondents No. 1 to 4. Mr. Pawan Kesharwani, P.L. for the State/respondent No. 5. JUDGMENT (17/10/2013) 1. The important issue involved in this appeal is whether on death of one of the joint decree-holder during the pendency of appeal, the appeal will abate wholly or partly in absence of his legal representative brought on record? 2. This is Miscellaneous Appeal under Order 43 Rule 1(k) of the Civil Procedure Code, 1908 (in short CPC ) by appellants/defendants, by which, their two applications; firstly, for bringing the legal representatives of appellant/defendant No. 3- Anandram and secondly, for bringing the legal representatives of respondent/plaintiff No. 3- Jagatram has been rejected by the Lower Appellate Court by its order dated 10/05/2001 passed in Civil Appeal No. 38-A/1998.

2 2 3. The facts necessary for adjudication of this appeal are as under: 3.1 The respondents/plaintiffs instituted a suit for declaration, injunction and possession before the trial Court. The suit was resisted by the appellants/defendants and counter-claim was also made for declaration of title and injunction. 3.2 The trial Court decreed the suit finding interalia that the respondents/plaintiffs are near relatives of deceased- Ghasiya and Kejabai and after their death, they inherited the suit property and held that respondents/plaintiffs are joint owners of the suit property; entitled for its possession jointly and granted permanent injunction in their favour. 3.3 The appellants/defendants including defendant- Anandram filed an appeal before the Lower Appellate Court under Section 96 of the CPC, challenging the judgment and decree dated 02/07/1988. During the pendency of the appeal, one of the appellant/defendant- Anandram died two years prior to filing of application for substitution along with application for condonation of delay under Section 5 of the Limitation Act, which was duly replied by the respondents/plaintiffs. 3.4 During the pendency of the appeal, one of the respondent No. 3/plaintiff No. 3- Jagatram also died on 06/08/1994. Fact of death was duly intimated by the counsel for the respondents/plaintiffs to the Lower Appellate Court on 20/09/1994 and it stands recorded in the order-sheet of the Lower Appellate Court. Application

3 3 for substitution of the deceased plaintiff No. 3 came to be filed on 05/07/1996 along with an application for condonation of delay under Section 5 of the Limitation Act, which was opposed by the respondents/plaintiffs by filing reply. 3.5 The Lower Appellate Court by its impugned order, rejected the applications filed for substitution of deceased defendant-anandram & deceased respondent/plaintiff- Jagatram therefore, the present appeal has been filed, challenging the impugned order in appeal. 4. Mr. Manoj Paranjpe, learned counsel appearing for the appellants/defendants would submit that the Lower Appellate Court has rejected the application for substitution and application for condonation of delay filed for bringing the legal representatives of deceased defendant No. 3- Anandram merely on the ground of non filing separate application under Order 22 Rule 9 of CPC for setting aside abatement. He would further submit that the application under Section 5 of the Limitation Act, though filed as an application for condonation of delay, but in fact the same was an composite application under Order 22 Rule 9 of CPC for setting aside abatement and for condonation of delay under Section 5 of the Limitation Act, therefore, the order of the Lower Appellate Court rejecting application for substitution of deceased appellant/defendant No. 3- Anandram is bad and liable to be set-aside. He would further submit that the order rejecting application for substitution of deceased respondent/plaintiff No. 3- Jagatram is liable to be set-aside, as appeal has not abated in toto. 5. On the other hand, Mr. Sanjay S. Agrawal, learned counsel appearing for the respondents/plaintiffs No. 1 to 4 would fairly submit

4 4 that so far as rejection of appellants/defendants application for substitution of deceased defendant No. 3- Anandram is concerned, the application filed under Section 5 of the Limitation Act was in fact a composite application for setting aside abatement and for condonation of delay, however, other aspect of the matter, he would vehemently submit that the decree passed by the trial Court on 02/07/1988 holding that the respondents/plaintiffs are joint owner of the suit property and entitled for joint possession from the Supraddar and is joint and indivisible decree and therefore, death of one of the respondent/plaintiff- Jagatram, appeal has abated as a whole and Lower Appellate Court has rightly held that the appeal as abated as whole and as such, no interference is called for in exercise of appellate jurisdiction. Learned counsel for the respondents No. 1 to 4 placed reliance in decisions Budh Ram & others v. Bansi & others 1 and State of Punjab v. Nathu Ram I have heard learned counsel for the parties and considered the rival submissions made therein and perused the record of the Lower Appellate Court. 7. Defendant No. 3-Anandram, which was appellant No. 3 before the Lower Appellate Court, died during the pendency of appeal, for which, application for substitution of the legal representatives as well as application under Section 5 of the Limitation Act came to be filed on 24/08/1994. It is pertinent to note that the Bhonglu- father of deceased- Anandram and his brother- Panch Ram are already on record representing the estate of deceased- Anandram and the application for condonation of delay clearly records that they are illiterate villagers, they could not inform their counsel for bringing the legal representatives of deceased- Anandram on record and the 1 (2010) 11 SCC AIR 1962 SC 89 (V 49 C 16)

5 5 respondents/plaintiffs being the resident of same village also could not bring it to the notice of Lower Appellate Court. Considering the fact that brother and father of deceased- Anandram were already on record, and the application filed under Section 5 of the Limitation Act appears to be composite application for condonation of delay and setting aside of the abatement as the said fact has not disputed by the counsel for the respondents/plaintiffs, the rejection of the said application by the Lower Appellate Court merely on the ground that application under Order 22 Rule 9 of CPC has not been filed, appears to be erroneous and it is hereby set-aside. 8. Now, I shall proceed to consider the other part of the order, by which, the application for substitution of deceased respondent/plaintiff- Jagatram has been considered and rejected by the Lower Appellate Court. It is admitted position on record that the deceased respondent/plaintiff- Jagatram died on 06/08/1994 and the counsel for the respondents/plaintiffs has intimated the fact of death to the Lower Appellate Court on 20/09/1994. On that day, appellants/defendants were duly represented before the Lower Appellate Court and the fact of death has duly been recorded in the order-sheet. The application for condonation of delay filed on 05/07/1996, stating interalia that the fact of death of respondent No. 3/plaintiff No. 3 was not intimated to the appellants and therefore, they could not file the appropriate application within the period of limitation for bringing legal representatives on record appears to be be erroneous. The order sheet dated 20/09/1994 records as : vihykfkhzx.k }kjk Jh nhf{kr vf/kizr;fkhz dz- 1,oa 3 ls 5 }kjk Jh lkgw vf/kizr;fkhz dz- 2 txrjke e`ra izr;fkhz dz- 6 }kjk Jh frokjh AGP izr;fkhz vf/k- Jh Hkqoky us lwfpr fd;k fd izr;fkhz dz- 2 txrjke dh e`r;q yxhkx dks gks xbza vfxze dk;zokgh gsrq fn A

6 6 9. Thus, appellants/defendants were duly made aware of the death of respondent/plaintiff No. 3 as on 20/09/1994 and they did not file the application within stipulated time and filed application on 05/07/1996 showing the cause that they were not aware of the death of respondent/plaintiff- Jagatram, which the Lower Appellate Court did not find favour by holding that cause shown for delay in filing the application is not the sufficient cause. In my considered opinion, the Lower Appellate Court rightly held that no sufficient cause has been shown by the appellants/defendants. The appellants/defendants were made aware of the death of respondent/plaintiff No. 3 by the respondents/plaintiffs but, they did not file the application within stipulated time and filed the application giving ground which is contrary to the record. Thus, the Lower Appellate Court has rightly rejected the application under Section 5 of the Limitation Act and rightly held that appeal has abated as a whole. The decree of the trial Court is that respondents/plaintiffs are the joint owners of the suit property and entitled to its joint possession from Supraddar, which is joint and indivisible decree and; therefore, due to death of one of the joint decree-holders, the entire appeal would abate as a whole. 10. In decision of State of Punjab (supra), Supreme Court has held that death of one of the joint decree holder would abate the entire appeal, as appeal cannot be heard and allowed, else it would lead inconsistent decree. The Supreme Court held as under: 8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result

7 7 of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree- holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant, and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondents, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken. 11. In decision of Budh Ram & others (supra), the Supreme Court while considering the effect that as to whether non-substitution of the legal representatives of the respondent/defendant/co-owner would abate in toto. The Supreme Court has held as under: 18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place. 19. In the instant case a declaratory decree was passed in favour of respondents/plaintiffs and Smt. Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". The appellants/applicants had sought relief against Smt. Parwatu before the 1st Appellate court as there was a decree in her favour, passed by the Trial Court where

8 8 Smt. Parwatu had been impleaded by the appellants/applicants as proforma respondent. In such a fact-situation, she had a right to contest the appeal. Once a decree had been passed in her favour, a right had vested in her favour. On her death on , the said vested right devolved upon her heirs. Thus, appeal against Smt. Parwatu stood abated. In the instant case, the 1st Appellate Court rejected the application for condonation of delay as well as the substitution of LRs of Smt. Parwatu, respondent No. 4 therein. 12. Thus, keeping in view the principles laid down by the Supreme Court in aforesaid cases with regard the fact of non-substitution of the deceased respondent/plaintiff, the decree in the instant case being joint and indivisible effect of non-substitution would be total abetment of the appeal filed by appellants/defendants; and thus, the trial Court has not committed any illegality in dismissing the appeal as abated. I hereby affirm the finding so recorded by the Lower Appellate Court. 13. Resultantly, so far as the order of the Lower Appellate Court rejecting the appellants /defendants application for substitution of the deceased appellant/defendant- Anandram is set-aside; whereas, the order of the Lower Appellate Court holding the whole appeal has abated as result of non-substituting the legal representatives of deceased respondent/plaintiff- Jagatram is hereby affirmed. 14. Accordingly, appeal deserves to and is hereby dismissed. No order as to costs. Tiwari JUDGE

9 9 HEADLINE The entire appeal would abate as a whole due to death of one of the holders of a joint and indivisible decree. la;qdr,oa vfohkdr fmdzhnkj esa ls fdlh dh e`r;q gksus ij laiw.kz vihy mi'kfer gks tkrh gsa

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