First Appeal No.810 of 1992

18th September, 1997

Petitioner Counsel: Shri A.B. CHAUDHARI
Respondent Counsel: Shri V.C.DAGA, Shri M.B. NASRE

Cases Cited:
AIR 1970 SC 108 [Para 6]
AIR 1971 SC 742 [Para 7]
AIR 1972 Raj 176 [Para 8]
AIR 1977 SC 789 [Para 9]
AIR 1962 SC 89 [Para 11]
AIR 1965 SC 1531 [Para 12]
AIR 1972 SC 1181 [Para 13]
AIR 1974 Bom 118 [Para 14]
AIR 1963 SC 1901 [Para 14]
First App. No.632/91 [Para 16]
1995(1) Scale 149 [Para 17]
1996(3) Scale 49 [Para 18]

JUDGMENT

B.H. MARLAPALLE, J.:- M/s.Ajay Industry, A-14, M.I.D.C. Area, Wardha, through its proprietor Shri Vijay Wamanrao Choudhari, was sanctioned cash credit hypothecation limit of Rs.95,000/- on 30.1.1986 by the Central Bank of India, Branch Office at M.I.D.C. Area, Wardha and the proprietor had executed a demand promissory note for the said amount in favour of the Bank and agreed to pay interest at the rate of 14% per annum with quarterly rests and by another letter, the proprietor had accepted the terms and conditions of the loan facility. He had also executed a letter of continuity and agreement of hypothecation in favour of the Bank. S/Shri Ajabrao S. Raut and Shankar Hari Nikam were the guarantors for the said cash credit granted by the Bank. The said limit was enhanced by the Bank by Rs.65,000/- at the request of the proprietor on 13.4.1987 and for the same, he also executed a demand promissory note of Rs.1,60,000/-, letter of continuity, letter of agreement of interest, letter of stock statement, agreement of hypothecation and guarantee bonds of the earlier guarantors, namely, S/Shri Ajabrao S. Raut and Shankar Hari Nikam. The said loan was also sanctioned on the same rate of interest, i.e. at the rate of 14% per annum with quarterly rests. The borrower did not make the payment in spite of repeated demands from the Bank. In spite of legal notices from the Bank, the proprietor failed to pay the outstanding amount of Rs.1,75,631/-, which included the original loan amount and interest as on 24.11.1988. The Bank, therefore, filed Special Civil Suit No.105 of 1988 by impleading M/s. Vijay Industry, its proprietor Shri Vijay Wamanrao Choudhari and two guarantors as defendants, for recovery of Rs.1,75,631/-.

2. During the pendency of the said special civil suit, defendant no.2, i.e. proprietor of defendant no.1 Industry, Shri Vijay Wamanrao Choudhari died and his legal heirs, namely, his mother, wife, minor daughter and son were brought on record as defendant no.2(a) to 2(d). Newly added defendants, who were legal heirs of defendant no.2, filed a joint written statement and opposed the suit mainly on the ground that management of defendant no.1 Industry was in the hands of late Vijay and his brother Onkar and after death of Vijay, his brother Onkar took over the management of the Industry as well as property. They further contended that they did not receive anything from the property of the original defendant no.2 and Shri Onkar Wamanrao Choudhari, who was brother of original defendant no.2, was required to be impleaded as a necessary party against whom the claim of the Bank was tenable. Therefore, they contended that the suit filed by the plaintiff Bank was not tenable against the legal heirs of original defendant no.2. It is also clear from the record that defendant nos.3 and 4 had also filed their written statement and admitted that they had executed documents as guarantors for the loan granted by the plaintiff Bank to defendant no.1 Industry. The civil suit came to be decreed in favour of the plaintiff Bank on 28.8.1991 by the following order :

"Suit is decreed with costs.

The plaintiff shall be entitled to recover a sum of Rs.1,75,631/- from defendant nos.1 and 2(a) to 2(d) and defendant nos.3 and 4, who are jointly and severally liable to pay the said sum to plaintiff and they do pay the same to plaintiff as well as future interest at the rate of 14% per annum on the sum of Rs.1,75,631/- from the date of the filing of the suit till its realisation to plaintiff within three months from the date of this order.

In case the defendants failed to pay the decretal sum, the same be recovered from defendants 1 and 2(a) to 2(d) by selling hypothecated property with the Bank first and thereafter by selling the field property owned by defendant no.3 and field property bearing Survey No.260, area 3.90 HR of village Kautha, Tahsil : Deoli, District : Wardha, owned by defendant no.4 mortgaged with the Bank by the mortgage deed dated 25.1.1986.

Decree be drawn up accordingly."

3. Aggrieved by the said order passed by the Civil Judge, Senior Division, Wardha in Special Civil Suit No.105/88, the original defendants 2(b) to 2(d) filed First Appeal Stamp No.810/92 along with an application registered as Miscellaneous Civil Application No.289/93 to file appeal in forma pauperis. In response to the notice issued by this Court, the Collector, Wardha has submitted his report confirming that present appellants did not have any property and that appellant no.1 along with her two children was staying with her father.

4. In the present appeal, original plaintiff has been impleaded as respondent no.1, original defendant no.2(a) has been impleaded as respondent no.2, original defendant nos.3 and 4 have been impleaded as respondent nos.3 and 4 and Collector, Wardha has been impleaded as respondent no.5. While the first appeal along with miscellaneous civil application was pending before this Court for admission, on the application filed by the present appellants, by order dated 15.9.1993 passed by this Court, the name of the present respondent no.2 and original defendant no.2(a) came to be deleted. It is under these circumstances that the original plaintiff Bank, who is respondent no.1 in the first appeal before this Court, has filed a pursis praying for declaration that the appeal does not survive as it has abated against all the present respondents because of deletion of name of respondent no.2 and original defendant no.2(a). We are, therefore, required to decide whether the first appeal has abated.

5. Both the learned Counsel appearing for the respective parties have, with their usual style of persuasion, relied upon number of judgments of the Apex Court as well as High Courts including some reported and un-reported judgments of this Court in support of their respective contentions. The learned Counsel for the present appellants, relying upon the provisions of Order 41 Rule 4 of the Code of Civil Procedure, strenuously urged before us that in spite of deletion of name of respondent no.2, the appeal is not abated against the present respondent nos.1, 3 and 4 and the pursis filed by the Bank, i.e. present respondent no.1 is devoid of merits, whereas contention of the learned Counsel appearing for the Bank is that the decree passed by the learned Civil Judge, Senior Division is joint and indivisible and by deletion of name of respondent no.2 and original defendant no.2(a) as per prayer of the present appellants, the appeal itself is abated against the Bank, which was the original plaintiff and hence, appeal does not survive.

6. We first deal with the case law cited by the learned Counsel for the present appellants in opposing the pursis filed by the plaintiff Bank.

In the case of Ratan Lal Shah v. Firm Lalman Das Chhadamma Lal and another (AIR 1970 SC 108), Firm Lalmandas Chhadammalal commenced action against Mohan Singh Ratan Lal, through its partners Mohan Singh and Ratan Lal in the Court of Civil Judge, Senior Division for recovery of Rs.12,883/- with interest thereon towards value of goods supplied. The trial Judge decreed the claim of the plaintiff in entirety against Mohan Singh and Ratan Lal and the firm known as Mohan Singh Ratan Lal. Against the said decree, Ratan Lal appealed to the High Court of Allahabad and Mohan Singh was impleaded as the second respondent in the appeal. The notice of appeal sent to Mohan Singh was returned unserved and the application made by the Counsel for the appellant to serve Mohan Singh in the ordinary course as well as by registered post was not disposed of by the High Court. On July 9, 1963, Ratan Lal applied that it was detected that there had been no service of the notice of appeal upon Mohan Singh and it was essential for the ends of justice that notice of appeal may be served upon Mohan Singh. The High Court by order dated July 10, 1963 rejected the application and proceeded to hear the appeal. The Court was of the view that since there was a Joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final. Ratan Lal could not claim to be heard on that appeal. The High Court observed that if the appeal was heard, the result may be that on the success of his appeal, there would be two conflicting decisions between the same parties in the same suit based on the same cause of action. It was further observed that appellant had not taken steps to serve the second respondent (Mohan Singh) and the appeal must be dismissed for want of prosecution. Against the order passed by the High Court, appeal was preferred with special leave and it was held by the Supreme Court that appeal could not be dismissed on the ground that Mohan Singh was not served with the notice of appeal nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees. After reproducing the provisions of Order 41 Rule 4 of the Code of Civil Procedure, the Supreme Court held that object of rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others and the Court in such an appeal may reverse or vary the decree in favour of all the parties, who are in the same interest as the appellant. While rejecting the order passed by the High Court, the Supreme Court further observed thus :

"The trial Court has passed a decree against Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the full amount of the claim of the plaintiffs. If the appeal filed by Ratan Lal succeeds, the Court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in the appeal.

The decree of the trial Court proceeded on a ground common to Mohan Singh and Ratan Lal. In the appeal filed by Ratan Lal, he was denying liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the court's jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised."

7. In the case of Mahabir Prasad v. Jage Ram and others (AIR 1971 SC 742), Jage Ram and two others collectively were lessees of certain property belonging to Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi (collectively referred to as plaintiffs). The plaintiffs commenced an action in the Court of the Subordinate Judge, First Class, Delhi for a decree for Rs.61,750/- being the amount of rent due by the defendants, which was decreed by the Court and execution of same decree was resisted by the defendants on the plea, inter alia, that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954. The Subordinate Judge upheld the contention and dismissed the application for execution. Mahabir Prasad alone appealed against the said order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died in November 1962 and Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents. Subsequently, the High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on the record within the period of limitation prescribed by the Limitation Act, the appeal abated in its entirety. Against that order, the appeal was preferred before the Supreme Court. Relying upon the earlier judgment in the case of Ratan Lal Shah (supra), the Supreme Court while allowing the appeal observed thus :

"No distinction in principle may be made between Ratan Lal Shah's case and the present case. Competence of the appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground, which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the appellate Court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground, which was common to him and others has appealed. That power may be exercised when other persons, who were parties to the proceeding before the subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The view taken by the High Court cannot therefore be sustained. Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi, there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. On that ground also, the order passed by the High Court cannot be sustained."

8. In the case of Hanuman and others v. Shakru and others (AIR 1972 Rajasthan 176), Shakru and Fattu filed a suit for permanent injunction restraining the defendants from opening doors on a piece of land of which Shakru and Fattu claimed to be co-owners. The suit was dismissed on 3.8.1968 by the Munsif on the ground that the plaintiffs had failed to establish their ownership of the land. Shakru alone filed an appeal on 2.9.1968 without joining Fattu even as a respondent. The defendants filed an objection that the appeal was incompetent as Fattu had not been impleaded either as an appellant or as a respondent. Long after the expiry of the period of limitation, Shakru filed an application that Fattu was a necessary party and should be impleaded as a respondent under Order 41 Rule 20 C.P.C. read with Section 151, Civil Procedure Code. By relying upon the judgment of the Supreme Court in the case of Mahabir Prasad (supra), the Rajasthan High Court held that appeal by Shakru alone was competent and the appellate Court had jurisdiction to add Fattu as a party under Order 41 Rule 4 of the Civil Procedure Code beyond the period of limitation.

9. In the case of Lal Chand (dead) by Legal Representatives and others v. Radha Kishan (AIR 1977 SC 789), A filed regular suit against B, C and D for possession of the ground floor in their possession. E and F were not impleaded because they had surrendered possession of the rooms on the second floor. The suit was decreed. B, C and D appealed jointly. During the pendency of appeal, B died whereupon his widow and his son G applied for being brought on the record as B's legal representatives. That application was contested by A on the ground that by reason of the ejectment decree, B and ceased to be a tenant and upon his death during the pendency of the appeal, the right to sue did not survive to his heirs. The application was accepted and the appellate Court dismissed the suit. In the appeal by special leave, the Supreme Court held that to treat the appeal as having abated on the death of B was erroneous and appellate Court ought to have applied the provisions of Order 41 Rule 4 of Civil Procedure Code. It was further held that the eviction decree being joint and indivisible, the dismissal of the appeal insofar as B was concerned, could not conceivably result in inconsistent decrees being passed in the event of the appeal by C and D being allowed. Therefore, the appellate Court ought to have heard the appeal on merits and decided the question whether the provisions of the Slum Clearance Act operated as a bar to the maintainability of the suit brought by A. These judgments do not support the case of the present appellants, taking into consideration the facts of this case before us.

10. Shri Daga, the learned Counsel appearing for the plaintiff Bank, submitted that the Authorities as relied upon by the learned Counsel for the present appellants are not applicable as the decree challenged in the appeal is not joint and several and that the provisions of Order 41 Rule 4 of the Code of Civil Procedure will come into play only in a case where decree is passed jointly and severally. Shri Daga asserts that in the present case, the decree passed is joint and indivisible so far as original defendant nos. 2(a) to 2(d) are concerned. Shri Daga relied upon number of Authorities in his favour.

11. In the case of State of Punjab v. Nathu Ram (AIR 1962 SC 89), Punjab Government had acquired on lease certain parcels of land belonging to Labhu Ram and Nathu Ram for different military purposes, under the Defence of India Act, 1939 and both the brothers refused to accept compensation offered to them by the Collector and applied to Punjab Government through the Collector, under Rule 6 of the Punjab Land Acquisition (Defence of India) Rules, 1943. The State Government referred the matter to an Arbitrator as required under Rule 10, who, after enquiry, passed an award ordering the payment of an amount higher than what was offered by the Collector. The State Government appealed against the award to the High Court of Punjab and during the pendency of appeal, Labhu Ram, one of the respondents, died. The High Court holding that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated, dismissed the appeal along with cross objections. While dismissing the appeal by special leave, the Supreme Court observed as under :

"(4) It is not disputed that in view of Order 22, Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent, there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.

(5) The same conclusion is to be drawn from the provisions of Order 1, Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.

(6) The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.

(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 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 respondent, 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.

(9) It is, therefore, necessary to determine, on the facts of this case, whether the State appeal could proceed against Nathu Ram. The award of the arbitrator in each of these cases was a joint one, in favour of both the respondents Labhu Ram and Nathu Ram. To illustrate the form of the award, we may quote the award for the year 1945-46 in the proceedings leading to Civil Appeal No.635 of 1957. It is:

"On the basis of the report of S.Lal Singh, Naib Tahsildar (Exhibit P.W. 9/1) and Sheikh Aziz Din, Tahsildar, Exhibit P.W.9/2, the applicants are entitled to a sum of Rs.4,140/- on account of rent, plus Rs.3,872/80 on account of Income tax, etc. due to the inclusion of Rs.6,193/8/0 in their total income, plus such sum as the petitioners have to pay to the Income-tax Department on account of the inclusion of Rs.4,140/- in their income as awarded by this award."

The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Ram's share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amount of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed.

(10) It is however contended for the State that according to the entries in the village records, Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award. We do not agree. The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income-tax they would have to pay on account of the compensation received being added to their income. Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares."

12. In the case of Union of India v. Shree Ram Bohra and others (AIR 1965 SC 1531), in para (15), the Supreme Court observed thus :

"We, therefore, consider the matter in appeal on the basis that the suit was brought by two persons as plaintiffs. They can at best be taken to represent the joint Hindu family which owned that firm Bansidhar Ganpat Rai. Any one of them cannot represent the joint family after the death of the other till his authority to represent the family is confirmed by the members of the family. There is no allegation or proof about such confirmation or fresh vesting of authority in the second plaintiff, viz. Shri Ram Bohra. For the purpose of the suit, there were two plaintiffs and on the death of one of them it was necessary for the opposite party to implead his heirs and legal representatives within time. It failed to do so and, therefore, the appeal against those heirs and representatives of Bilas Rai Bohra was rightly held to have abated. The result of such abatement makes this appeal against the other respondent incompetent as the decree against both the respondents, viz. Bilas Rai Bohra and Shri Ram Bohra was a joint decree. There was nothing in the decree to indicate for whose benefit it was passed or in what proportions the two decree-holders were to get the decretal amount. The appeal against Shri Ram Bohra was, therefore, incompetent."

13. In a subsequent decision in the case of Ramagya Prasad Gupta and others v. Murli Prasad and others (AIR 1972 SC 1181), while reiterating the ratio laid down in Nathu Ram's case, the Supreme Court further clarified that three tests laid down in Nathu Ram's case were not cumulative tests and even if one of them was satisfied, the Court must dismiss the appeal.

14. In the case of Reshmabai and others v. Sona Puna Patil and another (AIR 1974 Bombay 118), two brothers by name Sonu Puna Patil and Kautik Puna Patil had filed Regular Civil Suit No.34 of 1960 against one Reshmabai widow of Anna alias Ananda Patil. During the pendency of the suit, on her demise, her four heirs were brought on record. In the suit, the plaintiffs sought a declaration that the sale of suit land effected by them in favour of Reshmabai was illegal and not binding on the plaintiffs and they also sought to recover possession of the suit land. The suit was decreed with a declaration that the sale deed executed by the plaintiffs in respect of the suit land in favour of Reshmabai was void ab initio and not binding on the plaintiffs. Being aggrieved by thesaid decision and order, the defendants preferred an appeal to the District Court, which was dismissed by confirming the judgment and decree of the trial Court. During the pendency of the second appeal, first respondent Sonu Puna Patil (original plaintiff no.1) died on 10th October 1968 and no steps were taken by the appellants to bring Sonu Puna Patil's heirs on the record. On that admitted position, it was held that appeal had abated as far as first respondent Sonu was concerned. The next question then remained was whether the appeal had abated qua the second respondent and even if it be held that it had not abated, could it be proceeded with as against the second respondent. The learned Single Judge of this Court after discussing all the principles laid down by the Supreme Court in the cases of Nathu Ram (supra), Rameshwar Prasad v. Shambehari Lal (AIR 1963 SC 1901), Union of India v. Shree Ram Bohra (supra), R.P. Gupta v. Murli Prasad (supra) and others, held that appeal could not be proceeded with only against second respondent. In para (18) of the said judgment, the learned Judge observed as under :

"I am not considering the question whether Kautik could have maintained the action and sought declaration and possession without impleading his co-owner Sonu. The position is that the action has been commenced jointly by these two brothers as co-plaintiffs and they have obtained a decree in their favour which decree has been subsequently confirmed by the lower appellate Court and which decree, joint and indivisible, is challenged in this second appeal. As far as Sonu is concerned, the decree in his favour both for declaration and possession must now stand since the appeal as far as he is concerned has been declared to have abated. If that is so, it will not be possible for this Court now to modify that decree directly or indirectly. In my view the position is so obvious that it does not require further elaboration. Bearing in mind the nature of the claim in suit and the decree that has been passed by the trial Court in favour of both the respondents, which is joint and indivisible, it must be held that the appeal cannot be proceeded with only against the second respondent and must be dismissed. However, the proper order of costs seems to be to direct the parties to bear their own costs of the second appeal. There will be an order accordingly."

15. In the case of M/s. R.S. Rekchand Gopaldas Mohta and another v. M/s. R.S. Rekchand Gopaldas Mohta and others (un-reported) (, the plaintiffs had filed a suit for recovery of Rs.14,83,208.21 and contended that all the defendants were jointly liable to pay the said amount. Though the defendants had resisted the suit, the learned trial Court held in favour of the plaintiffs and decreed the suit by judgment and decree dated 20.4.1968. Being aggrieved, the defendants 1 and 2 preferred an appeal before this Court and during the pendency of the said appeal, defendant no.2, i.e. appellant no.2 before this Court, died on 27.2.1977. An application for bringing legal heirs of deceased appellant no.2 was made on or about 13.6.1977 and the said application was dismissed for non-removal of office objections. The said order was not challenged by the appellant no.1 by preferring a revision against the same, which is provided for under the Appellate Side Rules and since no steps were taken to bring the legal representatives of the deceased appellant no.2 on record, the Additional Registrar by his order dated 7.7.1978 held that the appeal has abated as against appellant no.2. This order was also not challenged by the appellant no.1. The plaintiff Company had urged before this Court that the whole appeal had abated on the ground that trial Court had passed a decree jointly against all the defendants although it was clarified that the liability of the defendants 3 and 4 would not be personal, but was restricted to their interest in the joint family property and since the decree was joint against the defendants and in the absence of the legal representatives of the defendant no.2 being brought on record, it was final against him and, therefore, appeal as a whole must abate. The Division Bench of this Court, relying upon the judgments of the Supreme Court in State of Punjab v. Nathu Ram, Ram Sarup and others v. Munsid and others, Union of India v. Shriram and others and Ramagya Prasad Gupta and others v. Murli Prasad and others (supra), upheld the objections raised by the plaintiff Company and dismissed the appeal as having abated. In para (12) of the judgment, this Court observed thus :

"The case of Union of India v. Shriram, cited supra, is however, applicable on all fours to the facts in the instant case. In the aforesaid case, two persons were representing as Karta of the joint family firm and one of them died during the pendency of the appeal filed against both. The Supreme Court held that since the authority to represent the joint family firm was joint, anyone of them cannot represent the joint family firm after the death of the other till his authority to represent the family is confirmed by the other members of the family. When there is no proof of such confirmation or fresh vesting of the authority in the other, the matter in the appeal has to be considered on the basis that the suit was brought by two persons as plaintiffs. Since the decree in the said case was also joint andindivisible, it was held that the appeal has abated as a whole when one of the two plaintiffs died during the pendency of the appeal. In the instant case, it is clear from the operative part of the judgment that the decree against the defendants is joint and indivisible. Hence, it has to be held that the instant appeal has abated as a whole. In view of the finding that the appeal has abated as a whole, it is not necessary for us to go into the questions on merits in the instant appeal."

16. In the case of State of Maharashtra v. Shri Vinayakrao Madhaorao Daoo and others - First Appeal No.632/91 (un-reported), another Division Bench of this Court, concurred with earlier judgment in the case of M/s. R.S. Rekchand Gopaldas Mohta (supra).

17. In the case of Rajeswari Amma and another v. Joseph and another (1995 (1) SCALE 149), three legal heirs of deceased Kolappa Pillai, namely, Rajeswari Amma, Sukumara Pillai and Neelamma Pillai had filed execution petition and after execution petition was ordered by the Court of District Munsif, the respondents carried it in revision to the High Court wherein only deceased Kolappa Pillai, Rajeswari Amma and Sukumara Pillai were impleaded as respondents omitting Neelamma Pillai. The Supreme Court in appeal against the order passed by the High Court, held that since the order of delivery of possession in favour of the decree-holders is common and inseparable and since it has become final as against Neelamma, the High Court was not right in setting aside the order as against the appellants.

18. In the case of Shri Bakshish Singh v. Arjan Singh (1996 (3) SCALE 49), one Mathra Singh, plaintiff no.1 and defendant nos.1 to 13 were partners of the factory known as Modern Ice Factory at Gurdaspur. A suit was filed for dissolution of partnership and rendition of accounts. The trial Court dismissed the suit and appeal also was dismissed. While second appeal was pending, two of the partners died and their legal representatives were not brought on record. Consequently, the High Court dismissed the second appeal as having abated as against all the respondents. In the appeal by special leave, the Supreme Court held as under :

"(4) It is well settled law that when the decree is single and indivisible, there cannot be inconsistent decrees as against the deceased respondents and the contesting surviving respondents. It is seen that two respondent-partners died pending second appeal. Therefore, there cannot be any inconsistent decree as against the dead persons and against whom the decree dismissing the suit had become final and other contesting respondents whose rights are to be adjudicated in the second appeal.

(5) It would, therefore, be clear that the High Court has not committed any error of law. Since the appeal has already got abated as against the deceased respondents, the Court cannot proceed further on merits. Equally, the same situation is confirmed in this appeal also. Since respondent nos.8 and 14(i) had already died and their rights have become final, since their legal representatives have not been brought on record and the appeal stands abated as against them, it would be inconsistent if we go into the merits of the matter as against the contesting respondents in this appeal. Under these circumstances, this appeal also stands abated as against all the respondents."

19. Relying upon all the above authorities, the learned Counsel for the respondent no.1/plaintiff Bank, strenuously urged before us that considering the nature of decree finally passed by the trial Court as against original defendant nos.2(a) to 2(d), this appeal as a whole has abated against all the respondents in view of the fact that name of one of them, i.e. defendant no.2(a), who was impleaded as respondent no.2 in this appeal, has been deleted subsequently during the pendency of the appeal on an application made by the present appellants. By reading the second part of the decree passed by the trial Court, it is clear that the said decree is joint and inseparable/indivisible and the original defendant nos.2(a) to 2(d) came on record as the legal heirs of original defendant no.2 on his demise. As an effect of deletion of name of respondent no.2 from the present appeal, it is true that the decree passed by the trial Court, which is impugned in the present appeal, has become final as against deleted respondent, namely, defendant no.2(a), and if the present appeal ultimately comes to be allowed, the net result will be that two different decrees will be in the field. Such a situation is against the law enunciated by the Supreme Court right from the case of Nathu Ram (supra) onwards. This Court in the above referred un-reported cases, has also laid down that in case of a decree, which is joint and inseparable in nature, the appeal is abated if the decree has become final against one of the defendants. We are in respectful agreement with both the earlier judgments of this Court in First Appeal Nos.46/1968 and 632/91. The learned Counsel for the present appellants, on enquiry, stated that deleted respondent no.2, i.e. original defendant no.2(a) is alive and the decree in appeal has already become final against her. He further submitted that the plaintiff Bank is at liberty to proceed against the deleted respondent no.2 even if the original decree is under challenge by the present appellants. We are afraid, the submission of the learned Counsel for the appellants must fail. The action of the appellants to delete the name of respondent no.2 has proved to be fatal to their appeal. As the decree passed by the trial Court is joint and indivisible and as the decree has become final against the deleted respondent no.2 in view of the law laid down by the Supreme Court and more particularly in the case of Shri Bakshish Singh (supra), the present appeal has abated against all the respondents and, therefore, it stands dismissed as abated.

Appeal dismissed