Summary
Where two defendants who had set up a common defence of joint title through their father jointly filed a second appeal against a decree holding the plaintiff to be owner and them to be tenants, and one defendant-appellant died without substitution of his legal representatives for six years, the Supreme Court upheld the High Court's refusal to condone the delay and held that the entire second appeal abated, because proceeding with it could produce decrees inconsistent with the one that had become final against the deceased; Order XLI Rule 4 CPC, which operates at the stage of filing an appeal, was unavailable to the surviving co-appellant once all defendants had appealed jointly.
Issues
- Whether the High Court's rejection of the applications for condonation of delay in seeking to set aside abatement and to substitute the legal representatives of the deceased co-appellant suffered from any legal infirmity.
- Whether, on non-substitution of the legal representatives of one of two defendant-appellants, the second appeal abated wholly or only partially.
- Whether Order XLI Rule 4 CPC enables the surviving co-appellant to continue a jointly filed appeal and seek reversal of the whole decree despite abatement qua the deceased co-appellant.
Provisions considered
- Order XXII Rule 9, Code of Civil Procedure, 1908The court may condone delay and set aside abatement under this rule, but only on sufficient cause. Death occurred in August 2015, the court was informed in 2016, and applications were filed only in 2022 after abatement was declared, by close relatives of the deceased; the High Court's finding of no sufficient cause warranted no interference under Article 136. (¶¶ 9, 10, 38)
- Order XXII Rules 1, 2, 3, 4 and 11, Code of Civil Procedure, 1908Rules 1 to 10 apply to appeals by Rule 11. Rules 3 and 4 on their face cause abatement only qua the deceased plaintiff or defendant, but the law has evolved that in a joint and indivisible decree abatement qua one party is fatal to the whole appeal. Order XXII operates during the pendency of a proceeding, not at its institution. (¶¶ 12, 13, 14, 17, 31)
- Order XLI Rule 4, Code of Civil Procedure, 1908Permits one of several plaintiffs or defendants to appeal from the whole decree where it proceeds on a ground common to all. Following Rameshwar Prasad, Mahabir Prasad and Goli Vijayalakshmi, the rule applies at the stage of filing and becomes unavailable once all the plaintiffs or defendants appeal jointly; it cannot be used to reopen a decree that has become final qua a deceased co-appellant, though it remains available where the deceased was only a proforma respondent. (¶¶ 27, 28, 29, 30, 31, 38)
- Articles 120 and 121 of the Schedule, Limitation Act, 1963The 90-day period for substitution and the 60-day period for setting aside abatement had expired by January 2016, yet no application was moved until 2022. (¶ 10)
Held
- Although the court has power under Order XXII Rule 9 CPC to condone delay in applying to set aside abatement and for substitution, sufficient cause must be shown; where the surviving appellants were close relatives of the deceased, the court had been informed of the death in 2016 and applications were filed only in 2022 after abatement was declared, refusal to condone delay warranted no interference under Article 136. (¶¶ 9, 10)
- Whether an appeal abates wholly or only qua the deceased party depends on the facts of each case. Courts will not proceed where success of the appeal would produce a decision in conflict with the decree that has become final between the appellant and the deceased party, where the appellant could not have brought the action against the surviving parties alone, or where the resulting decree would be ineffective. In a joint and indivisible decree, abatement qua one party is fatal to the entire appeal; the test is whether the decree vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees, that is, decrees incapable of enforcement together or mutually self-destructive. (¶¶ 14, 15, 16, 17, 25)
- Where plaintiffs or appellants have distinct, separate and independent rights and merely join in one litigation, the decree is in substance a combination of several decrees and not joint and inseverable; existence of a joint right as opposed to tenancy-in-common is not the criterion, the joint character of the decree taking colour from the nature of the decree challenged. A mere assertion that the surviving party's own share could be determined does not save the appeal where the pleadings reflected a joint claim. (¶¶ 17, 20)
- Order XLI Rule 4 CPC applies at the stage of filing an appeal and empowers one of several plaintiffs or defendants to appeal against the whole decree; once all of them have appealed jointly, the rule becomes unavailable. Order XXII operates during the pendency of the appeal, so if an appellant dies and his legal representatives are not substituted within limitation, his appeal abates and the decree becomes final against his estate; the surviving appellants cannot be treated as representing him. There is no inconsistency between Order XXII and Order XLI Rule 4, which operate at different stages. Where, however, the appeal was filed by some parties impleading the others as proforma respondents, Order XLI Rule 4 permits the appeal to continue regardless of substitution of a deceased proforma respondent. (¶¶ 27, 28, 29, 30, 31)
- Sakharam v. Kishanrao, which held that death of one of two plaintiff-decree holders does not cause a second appeal to abate, is per incuriam because it did not consider the possibility of conflicting decrees or the binding larger-Bench precedents including Sardar Amarjit Singh Kalra. Delhi Development Authority v. Diwan Chand Anand does not assist where there was no suit by co-sharers on behalf of others and the appeal was filed jointly by both defendants. (¶ 32)
- Both defendants had set up a common defence of joint title through their father, which the first appellate court rejected, holding the plaintiff to be owner and the defendants tenants. On abatement qua the deceased defendant-appellant that decree attained finality against him, so allowing the surviving appellant to proceed could yield a decree holding him owner of the same property, in conflict with the final decree; the decree being indivisible, the entire second appeal abated. (¶¶ 33, 34, 36, 37, 38)
Result
Appeals dismissed. The High Court's orders dated 21.02.2022 (declaring the second appeal abated) and 04.08.2022 (rejecting the applications for condonation of delay, setting aside abatement and substitution) affirmed. Pending applications disposed of; parties to bear their own costs.