Summary
Two brothers obtained in first appeal a decree for declaration and possession of immovable property. The defendants filed a second appeal in the Bombay High Court, and while it was pending one of the two decree-holding plaintiffs died and his legal representatives were not brought on record. The High Court held the second appeal had abated and refused to set aside the abatement. The Court held that where two plaintiffs jointly obtain a decree, the death of one does not cause the appeal to abate if the right to sue survives against the surviving decree-holder. Under Order XXII Rule 2 read with Rule 11 CPC, applying respondent for defendant and appeal for suit, the appeal proceeds against the surviving respondent. The dismissal for abatement, without reaching the merits, was contrary to law. The second appeal was remitted for decision on merits within six months.
Issues
- Whether a second appeal against a decree jointly obtained by two plaintiffs abates on the death of one of them when his legal representatives are not brought on record.
Provisions considered
- Order XXII Rules 2 and 11, Code of Civil Procedure, 1908Where one of several respondents dies and the right to sue survives against the rest, the appeal proceeds against the survivors, reading respondent for defendant and appeal for suit under Rule 11. The second appeal therefore did not abate. (¶¶ 6, 7, 8, 9)
Held
- When two plaintiffs jointly secure a decree for declaration and possession of immovable property, the death of one decree-holder does not make the appeal against the decree abate. The cause of action survives against the surviving decree-holder, and abatement occurs only when it does not survive against the remaining party. (¶¶ 5, 6)
- Order XXII Rule 2, read with Rule 11 which substitutes respondent for defendant and appeal for suit, provides that the appeal proceeds against the surviving respondents. The High Court's dismissal of the second appeal as abated, without examining the merits, and its refusal to set aside abatement were contrary to law. (¶¶ 7, 8, 9, 10)
Result
Appeals allowed. The High Court's judgment holding the second appeal abated and its order refusing to set aside abatement are set aside, and the second appeal is remitted for decision on merits, preferably within six months.