A.I.
R. 1940 Patna 346
FULL
BENCH
HARRIES C. J., WORT AND
MANOHAR LALL JJ.
Ramphal Sahu and others-
Defendants-Appellants.
V.
Babu Satdeo Jha and another -
Plaintiffs-Respondents.
Appeal No. 232 of 1936, Decided on 15th April
1940, from original decree of Sub- Judge, Muzaffarpur, D/. 30-9-1936.
Civil P. C. (1908). O. 22. R. 3 and O.
41, R. 4-Appeal by all plaintiffs or defendants from decree proceeding on
ground common to all-One of them dying-No substitution made within
time-Appellate Court cannot reverse or vary decree in favour of all appellants
:
19 Pat 172 = AIR 1940 Pat 341=185 I C 685 Overruled.
By reason of the provisions of Rr. 3 and 11, of O.
22 the appeal in so far as it concerns the deceased appellant abates and as the
abatement, if not set aside has the force of a decree, the matter become final
as against the deceased appellant. Ther is nothing in O.41 and R.4 which permits
the Court that finality of the decree as against the deceased appellant. The
words "and thereupon the Appellate Court may reverse or vary the decree in
favour of all the plaintiffs or defendants, as the case may be" in O. 41,
R. 4 suggest that all the plaintiffs or defendants are alive at the time when
the decree of the Appellate Court is passed. The wording is not appropriate to
a case where one of the plaintiffs or defendant-appellants has died during the
pendency of the appeal. Hence, the Appellate Court has no power to proceed with
the hearing of an appeal and to reverse or vary the decree in favour of all the
plaintiffs or defendants under O. 41, R. 4, if all the plaintiffs or defendant
appeal from the decree and one of them dies and no substitution is effected
within time and the application for setting aside the abatement, so far as the
deceased appellant is concerned, has been refused assuming that the decree
appealed from proceeded on a ground common to all the plaintiffs or defendants:
Case law reviewed: 19 Pat 172 AIR 1940 Pat 341-185 IC 685, Overruled. [P 346 0
2; P 347 C 2; P 348 C 1; P 351 01; P 352 C 1)
P. R. Das, Balaram Kumar Sinha and Prem Lall - for
Appellants.
P. C. Manuk, Rati Kant Chaudhuri, Ramanugrah
Narayan Sinha. Hareshwar Prasad Sinha and P. Jha- for Respondents.
OPINION
Harries C. J.-This is a reference to a Full Bench
in which the following question has been submitted:
Has the Appellate Court power to proceed with the
hearing of an appeal and to reverse or vary the decree in favour of all the
plaintiffs or defendants under O.41, R. 4, Civil P. O., if all the plaintiffs
or defendants appeal from the decree and опе of them dies and no substitution
is effected within time and an application for setting aside the abatement, so
far as the deceased appellant is concerned, has been refused, always assuming
that the decree appealed from proceeded on a ground common to all the
plaintiffs or defendants ?
On 7th July 1924, plaintiff 1 executed a mortgage
bond for Rs. 1500 carrying interest at the rate of two per cent. per mensem
with six monthly rests in favour of one Pandit Kapileshwar Missir, a pleader
practising in the Courts at Laheria Sarai. On 16th October 1924, he executed
another mortgage for Rs. 2000 with interest at two per cent. Per mensem with
quarterly rests in favour of the same mortgagee. On 14th May 1925, he executed
a third mortgage for Rs. 2500, with interest at Ro. 1.8.0 per cent. With annual
rests in favour of the same mortgagee, and on 26th May 1926 he executed a
fourth mortgage in favour of the same person for Rs.7000 with interest at one percent,
per mensem with six monthly rests. In all these mortgages the property mortgaged
was at eight annas share in mauza Nobahi. In order to redeem these bonds.
Plaintiff 1 sold five annas out of the eight annas share in village Nebahi already
mortgaged to the four defendants on 30th.June 1929for a sum of Rs.27,737.
He left with the purchaser a sum of Rupees 4658.12.6 to redeem the first bond,
Rs. 369 for the second bond, Rs. 3033-10-0 for the third and Rs. 12,592-2-0 for
the fourth bond. The four defendants redeemed the first two bonds and not the
third and fourth. It transpired that plaintiff 1 has not left sufficient money
to redeem the third bond, as the parties were apparently under a mistaken
belief that this bond was for Rs. 1500, whereas in fact it was for Rs. 2500. On
20th November 1933 plaintiff 1 sold a further one anna share of his eight-anna
interest in mauza Nebahi to the four defendants for Rs. 2500, and it is
conceded that the four defendants had after this sale sufficient funds to
discharge the third and fourth mortgages. They however failed to do so, and
eventually this suit was instituted praying that the liability of the four
defendants be assessed at Rupees 33,070.4-2 1/2 and further that it might be
ordered by the Court that within a period to be fixed the defendants should pay
to Pandit Kapileshwar Missir or should deposit in his name in Court the said
sum of Rs. 33,070-4-2 1/2 and cause the mortgage bonds to be filed in Court. In
case of failure to pay the said debt in the manner indicated above, a money
decree was prayed for the said sum.
The learned Subordinate Judge passed a decree in
favour of the plaintiffs against all four defendants Ramphal Sahu, Ramkhelawan
Sahu, Ramnarain Sahu and Bhola Sahu. Against this decree the four defendants
appealed to this Court. During the pendency of the appeal, Ramnarain Sabu died,
and no steps were taken within the prescribed period to bring the names of his heir
or personal representatives on to the record. Later an application was made to set
aside the abatement: but this application was rejected by a Bench of this Court.
The remaining three defendants thereupon prosecuted the appeal. On the appeal
coming on for hearing before a Bench of this Court, counsel for the respondents
took a preliminary objection that the appeal was incompetent and that by reason
of the failure to bring on to the record the names of the personal
representatives of Ram narain Sabu the whole appeal had abated. On behalf of
the appellant, it was contended inter alia that the three appellants could
continue the proceedings by reason of the provisions of O. 41, R. 4, and Civil
P. C. The Bench which heard the case was of opinion that the point involved was
one of difficulty and importance and referred the matter to the Chief Justice
for the constitution of a Full Bench. The question has therefore been heard by the
present Bench. O. 41, R. 4,Civil P. C, are in these terms:
Where
there are more plaintiffs or more defendant than one in a suit, and the decree
appealed from proceeds on any ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the defendants may appeal from the whole
decree, and thereupon the Appellate Court may reverse or vary the decree in
favour of all the plaintiffs or defendants, as the care may be.
It is conceded by both parties that the decree in
this case against the four defendants proceeded on the ground common to all. It
was contended on behalf of the appellants that this rule applied not only to a
case where one or more of a number of defendants had appealed but also to a se
where all the defendants had appealed and one of them had died during the pendency
of the appeal. It was argued that there was no difference whatsoever in principle
between the case of some only of the defendants appealing and the case where
all had originally appealed and one had died during the pendency of the appeal
and no steps had been taken to bring the names of the heirs or personal
representatives of the deceased appellant on to the record.
The wording of O. 41, R. 4. Civil P. C.. suggests
that the rule was intended to apply to cases where all the plaintiffs or
defendants were alive and that only one or more such plaintiffs or defendant
had appealed from the decree. The rule lays down that in such a case the Court
may reverse or vary the decree in favour of all the plaintiffs or defendants in
the suit as the case may be, provided that the decree appealed from proceeded
on any ground common to the plaintiffs or defendants. The words “and thereupon
the Appellate Court may reverse or vary the decree in favour of all plaintiffs
or defendants, as the case may suggest that all the plaintiffs or defendants are
alive at the time when the decree the Appellate Court is passed. The word. of
the rule does not appear to me to be appropriate to a case where one of the plaintiffs
or defendant-appellants has died during the pendency of the appeal. A plaintiff
or defendant-appellant who has died during the pendency of the appeal can no or
be regarded as a plaintiff or defendant in the suit, and the rule does not
state in terms that the decree may be reversed varied in favour of all the plaintiffs
or defendants or their personal representatives or representatives-in-interest.
The reversal variation can only be made in favour of the plaintiffs or
defendants and that suggests that it cannot be made in favour of the personal
representatives of a deceased plaintiff or defendant. O, 29, Rr. 3 and 4, Civil
P. C., deal with cases of plaintiffs and defendants dying during the pendency
of a suit, and O. 22, R. 11 makes the provisions of O. 22, R. 3 applicable to
cases of appellants dying during the pendency of an appeal. O, 22, R. 3 reads
as follows:
(1)
Where one of two or more plaintiffs dies and the right to sue does not survive
to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole
surviving plaintiff dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representatives of the
deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where
within the time limited by law no application is made under sub-r. (1), the
suit shall abate so far as the deceased plaintiff is concerned, and on the
application of the defendant, the Court may award to him the costs which he may
have incurred in defending the suit, to be recovered from the estate of the
deceased plaintiff.
As I have stated, this rule has been made
applicable to appeals and therefore where one of the appellants dies and the
right to prosecute the appeal does not survive to the surviving appellant or
appellants alone, the Court on an application made in that behalf shall cause
the legal representatives. of the deceased appellant to be made a party and
shall proceed with the appeal. But where within the time limited by law no
application is made to bring the names of the representatives of the deceased
appellant on to the record the appeal shall abate so far as the deceased
appellant is concerned. In the present ease, the right to appeal did not survive
to the surviving appellants alone. The representatives of the deceased
appellant could undoubtedly have joined in the prosecution of the appeal.
This rule is therefore applicable to the present
case and the appeal abated in so far as the deceased appellant was concerned.
The decree which had been passed against him became final as the Court on application
made to it refused to set aside the abatement. It is to be observed that O. 22,
R. 3 is silent as to the ultimate fate of the appeal. All it states is that the
appeal abates in so far as the deceased appellant is concerned. It has however
been laid down by all the Courts in India that the appeal will in these
circumstances abate as a whole if the case is of such a nature that the appeal
cannot proceed in the absence of the legal representatives of the deceased appellant.
This Bench however is only concerned with the question whether the remaining
appellants can successfully prosecute this appeal by reason of O. 41, R. 4, and
Civil P. C. If that rule applies, it seems clear that the appeal will not abate
as a whole. However, even if O. 41, R. 4. Civil P. C., does not permit the
appellants to continue to prosecute the appeal it does not follow that the
appeal abates as a whole. The present reference is only concerned with the
question whether O. 41, R. 4, Civil P. C., allows the remaining appellants to
prosecute the appeal and not with the question whether on other grounds the
appeal can or cannot proceed. O. 22, Civil P. C., provides a complete code to
deal with the questions which arise by reason of the death of one of the
parties to an appeal. That being so, it has been contended on behalf of the
respondents that the rights of the parties in the present case must be governed
solely by O. 22, R. 3, Civil P. C. That Rule makes it clear that the appeal in
so far as the deceased appellant is concerned has abated. According to the
respondents, if the remaining appellants are allowed to prosecute the appeal
conflicting or contradictory decrees may result and therefore the whole appeal
must be regarded as having abated. As I have stated, whether the whole appeal
has or has not abated in such circumstances is not a matter for this Bench.
On behalf of the appellants, it is urged that even
if the appeal in so far as it concerns the deceased appellant has abated, the
surviving appellants can prosecute the appeal and the Court may, under O. 41,
R. 4, Civil P. C., reverse or vary the whole decree, that is reverse or vary it
in favour not only of the surviving appellants but also in favour of the legal
representatives of the deceased appellant. In short, it is contended that in
this case the Court has power to reverse the decree of the Court below and
dismiss the whole suit not only against the surviving defendant-appellants but
also against the legal representatives of the deceased defendant-appellant
against whom the decree has already become final by reason of the refusal of
the Bench to set aside the abatement.
The appellants' contention is supported by
considerable authority. The earliest case is 22 Bom 718.(Chandarang v.
Khimabhal,(1898)22 Bom 718.) In that case one of several defendant-appellants
died after appeal filed but before the hearing. An application to have the name
of his heir entered on the R. 20, Civil P. O., added the omitted defendants as
parties and dealt with the appeal. It was held that the order of the District
Judge was without jurisdiction inasmuch as the appeal being against some only
of the joint claimants, it was incompetent and the effect of the order was to
give power to the appellants to present the appeal although it was time-barred
at the time the particular order was passed. Das J. at p. 758 observed:
As was
pointed out in Manindra Chandra Nands v. Bhagwati Debi Chaudhuranio it, that is
to say O. 41, R. 20, 'is not intended to override the provisions of O. 22,
Civil P. C. The right obtained by a respondent when the appeal abates as
against him is a valuable right and should not be lightly treated. The right of
those respondents who were not made parties to the appeals is valuable right,
because they were not made parties to the appeals and the appeals against them
would be barred by limitation at the date when they were added.
The cases to which I have referred are the
principal cases dealing with the respective contentions of the parties in this case.
In my judgment, the latter cases to which I have referred express the correct
view. O. 29, Rr. 3 and 11, Civil P. C., deal with cases in which one of a
number of appellants has died. By reason of the provisions of those Rules, the
appeal in so far as it concerns the deceased appellant abates and as the
abatement, if not set aside, has the force of a decree, the matter becomes
final as against the deceased appellant. In my judgment, there is nothing in O.
41, R. 4. Civil P. C, which permits the Court to disturb that finality of the
decree as against the deceased appellant. To bold that O. 41, R. 4, Civil P. C,
applies to a case such as the present one is to hold that a Court can reverse
or vary a decree in favour not only of a person who is not before the Court but
in favour of a person who is no longer in existence. It appears to me that
before a Court can vary a decree in favour of the representatives of the
deceased appellant such representatives must be brought on to the record. The
Court could, of course, do so if a rule expressly empowered it, but in my
judgment O. 41, R. 4, Civil P. C. does not give such a power. As I have stated
earlier, that rule is framed on the assumption that all the plaintiffs or
defendants in the suit are alive at the date of the passing of the appellate
decree, O. 41, R. 4, Civil P. C., cannot override or create an exception to O.
23, Rr. 3 and 11, and in the case of one or more appellants dying even where a
decree proceeds on a ground common to all, the matter must be governed solely
by the provisions of those latter rules. To hold otherwise is to hold that O.
41, R. 4, Civil P. C., gives the Court power to set aside abatement and to
reverse or vary a decree which has become final against the deceased appellant.
Whether is such circumstance the appeal has or has not abated as a whole will
depend upon considerations other than the provisions of Order 41, Rule 3.
It was also contended by Mr. P. R. Das who argued
the case for the appellants with his usual ability that this Court could not
now take a different view from that which had been taken by many High Courts in
the past. Some of the earlier cases which are in favour of Mr. Das's contention
were decided on S. 544, Civil P. C. of 1882. This Section was re-enacted in O.
41, R. 4 of the Code of 1909. Mr. Das contended that it must be assumed that
the Legislature when re-enacting the Code of 1908 well knew the construction
which had been placed on S. 544 of the old Code and that by re-enacting that
Section in precisely similar terms the Legislature expressly recognized the
meaning which had been placed on the old Section. Accordingly, he argues that
O. 41, R. 4 must now be given the meaning which had been attributed to the
words of S. 544 of the old Code. In support of this contention Mr. Dan relied
upon 4 Cal 179 (Emp. Bural, (1879) 4 Cal 173-5 14 178
Bar 8343 Suther 5063 CLRIST(PC )and (1891) A C 531."(
Commiers for Spedal Purpose of the Income-tax v. J. F. Femal, (1891)
& C 681- 61 LJ QB 265-65 L76155 3 805.) At p. 590 of the latter case Lord Macnaghten
observed:
I
cannot help reminding your Lordships, in conclusion, that the Income tax Act is
not a statute which was passed once for all. It has expired, and been revived,
and re-enacted over and over again: every revival and re-enactment is a new
Act. It is impossible to suppose that on every occasion the in which the tax
was being administered by a department of the State under the guidance of their
legal advisers, especially when the practice was fully laid before the
Parliament in the correspondence to which I have referred.
It
seems to me that an argument in favour of the respondent might have been
founded on this view of the case. The point of course is not that a continuous
practice following legislation interprets the mind of the Legislature, but that
when you find legislation following continuous practice and repeating the very
words on which that practice was founded, it may perhaps fairly be inferred
that the Legislature in enacting the statute intended those words to be
understood in their received meaning. And perhaps it might be argued that
the inference grows stronger with each successive re-enactment.
In my judgment the principle enunciated Lord
Macnaghton can have no application to this case. During the period under consideration
the Code of Civil Procedure as only re-enacted on one occasion and previous to
1908 there had boon a very few decisions on S. 544 of the old Code. The
Legislature may or may not have been aware of the interpretation given to the words
of that Section by the Bombay and Allahabad High Courts; but, even if they were
aware of that interpretation, it in no way follows that they adopted such interpretation
when they re-enacted the Section O. 41, R. 4. In my judgment the rule laid down
in 4 Cal 172 and (1891) A C 3121 has no application to the present case before
the Court. For the reasons which I have given, I am satisfied that the appellants
in the present case are not entitled by reason of O. 41, R. 4. Civil P. C., to prosecute
the appeal and to obtain a reversal or variation of the decree in favour of all
the plaintiffs and defendants. If they are entitled to prosecute the appeal and
to obtain such reversal or variation, it is by reason of matters other than
those contained in O. 41, R. 4, and Civil P. C. I would therefore answer the
question submitted to be Full Bench in the negative. I would direct that the
costs of this reference abide the event.
Wort J.-I
agree.
Manohar Lall J.-
I agree entirely with the reasons given by my Lord the Chief Justice and would
answer the question in the negative.
D.S./R.K.
Answered in negative.
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