BHOLA NATH MISRA versus RAJENDRA PANDEY AND ANR.

Citation: [1997] 2 S.C.R. 326 · Decided: 20-02-1997 · Supreme Court of India · Bench: K. RAMASWAMY, S. SAGHIR AHMAD · Disposal: Dismissed

Judgment (excerpt)

A 
BHOLA NATH MISRA 
v. 
RAJENDRA PANDEY AND ANR. 
.. 
FEBRUARY 20, 1997 
B 
(K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.] 
Decree: 
Suit-Decree against more than one defendants-{)ne of them not 
c contesting the decree-Effect of~Held, when decree against one of the def en-
dants had become final and is either not contested or not carried in appeal. 
the decree becomes enforeable as against the defendant who suffers the 
deqee-But when one of the defendants contests the co"ectness of the decree, 
it has to be examined whether the finding recorded and the decree passed by 
D the trial coult as affirmed by the appellate coult is comet in law-High Court 
has not gone into the merits-Only course open is to remit the matter to High 
Coult for reconsideration on merits-However, in the instant case, no useful 
purpose would be served in remitting the matter to High Coult after two 
decades-Appeal dismissed. 
E 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1606 of 
1980. 
From the Judgment and Order dated 21.4.98 of the Allahabad High 
-.....-
Court S.A. 3091 of 1976. 
F 
Ms. Rachna Gupta for Mrs. Rani Chhabra for the Appellant. 
VJ. Francis and P.I. Jose for the Respondents. 
.,
G 
The following Order of the Court was delivered : 
This appeal by special leave arises from the judgment of the learned 
Single Judge of this Allahabad High Court, made on April 21, 1978 
confirming the decree of the trial Court and appellate Court granting a 
perpetual injunction against the appellant and the second defendant 
H restraining them from making any construction on the land in dispute, as 
326 
• 
B.N. MISRA v. RAJENDRA PANDEY 
327 
shown in the map annexed to the plaint and also mandatory injunction. A 
to demolish the construction in so far as it relates to the construction on 
such land. The second defendant remained ex-parte in the trial Court and 
the decree as against him had become final. The appellant/first defendant 
carried the matter in appeal which was confirmed and the second 
appeal was filed. Counsel appearing for the appellant made a state-
B 
ment on December 6, 1976 that he was not seeking any relief against 
the second defendant and the decree as against the second defendant 
having become final, he was not proposing to take out any service of 
notice on the second defendant. As a result, the Court noted on that 
date "that effect thereof should be brought to the notice of the court" C 
when the appeal was to be heard on merits. Consequently, when the 
matter had come up for hearing on merits, the learned Judge 
proceeded on the premise that the decree as against the second 
defendant being joint and inseperable, the same have become final, as 
against the second defendant it was abated and so it would not be D 
proper to go into the merits in the matter. As a consequence, the appeal 
also was dismissed without going into the merits, as contended by the 
appellant. Thus; this appeal. 
Palpably, the view taken by the High Court is not correct. The 
question of abatement of the appeal does not arise because this is not E 
a case of any of the parties expiring pending proceedings followed by 
omission to bring the legal representatives on record. In that situation 
only, the appeal gets abated. But when the decree as against one of the 
defendants has become final and is either not contested or is not carried 
in appeal, the decree becomes enforceable as against the defendant who F 
suffers the decree. But when one of the defendants contests the correct-
ness of the decree, necessarily, it has to be examined whether the finding 
recorded and the decree passed by the trial Court, as affirmed by the 
appellate Court, is correct in Jaw. But, unfortunately, the High Court 
has not gone into the question. The only course then open is remittance 
of the matter for consideration by the High Court on merits. Unfor- G 
tunately, this Court has dispensed with the printing and directed the 
appeal to be heard on the basis of the material place in the SLP paper 
book, The appellant has not placed on record the judgment and decree 
of either the trial Court or the appellate Court. Under these circumstan-
·ces, we are not in a position to know what were the reasons given by H 
328 
SUPREME COURT REPORTS 
[1997] 2 S.C.R. 
A trial Court and as affirmed by the appellate Court in granting the decree 
against the appellant. Under these circumstances, we think that no useful 
purpose would be served in remitting the matter after two decades. 

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