BIBIJAN AND ORS. versus MURLIDHAR AND ORS.

Citation: [1994] SUPP. 5 S.C.R. 496 · Decided: 15-11-1994 · Supreme Court of India · Bench: K. RAMASWAMY, N. VENKATACHALA · Disposal: Dismissed
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Judgment (excerpt)

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BIBIJAN AND ORS. 
v. 
MURLJDHAR AND ORS. 
NOVEMBER 15, 1994 
[K. RAMASWAMY ANON. VENKATACHALA,JJ.] 
Civil Proced_ure Code, 
1908-0rder XX//, Rule 4 rlw Rule 
11/Limitation Act, 1963-Artic/es 120 and 121-Appeal-Joint and 
inseverable decree of redemption-Death of appellants No. 1 and 5 during 
pendency of appeal-No application made to bring on record legal 
representatives of deceased appellants-Abatement of their appeal-
Whether appeal of other appellants also abates-Held, Yes-Entire appeal 
stands abated 
The respondent had filed a suit for redemption of usufructuary 
mortgage. The trial court dismissed the suit as being barred by 
limitation. On appeal, it was confirmed. The High Court in second 
appeal granted a preliminary decree for redemption holding that the · 
mortgage acknowledged the mortgage and that, therefore, limitation 
starts running from the date of the acknowledgement which would give 
fresh cause of action for filing a suit for redemption and possession. 
This appeal by special leave has been filed against the judgment of tbe 
High Court. 
During the pendency of the appeal, appellant No. 1 and appellant 
No. 5 died. No step had been taken to bring the legal representatives of 
appellant Nos. 1 and 5 on record. Their appeal stood abated. The 
question that arose was whether the appeal of other appellants also 
abates. 
Dismissing the appeal, this Court 
HELD: Admittedly PS no applications had been made to bring on 
record the legal representatives of the deceased appellants Nos. 1 and 5 
from the respective dates, before the expiry of 90 days, this appeal 
1 stood abated. The. question is whether the appeal of other appellants 
also abates. It was the joint and inseverable decree of redemption 
granted in favour of respondents, which was questioned in the appeal. 
When that decree of redemption against appellants I and 5 had come to 
stand because of abatement of their appeal, that decree of redemption 
496 
BIBIJAN v. MURLIDHAR 
497 
against appellants 2 to 4 alone cannot be set aside, for in that event A 
decree of redemption made .against appellants 1 to 5 questioned in the 
appeal would stand while the decree against appellants 2 to 4 alone 
calls be set aside. Since the decree for redemption being joint and 
inseverable,' the appeal cannot be continued. In this view of the matter 
the entire appeal stands abated. (498-D-F) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2737/80. 
From the Judgment and Order dated 12.2.79 of the High Court of 
Bombay in Second Appeal No. 719170. 
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S. Uday Kr. Sagar, for P.H. Parekh, Uma Datta for the Respondents. 
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The following Order of this Court was delivered: 
This appeal arises from the judgment of the High Court of Bombay at 
Aurangabad in S.A. No. 719 of 1970 dated February 21, 1979. The 
respondent had filed the suit for redemption of usufructuary mortgage dated D 
15th Awarded 1321 Fasli, 1912 A.D., hypothecated for a sum of Rs. 
9200--0.S. by the~ predecessors-in-interest. The trial court dismissed the 
suit as being barred by limitation. On appeal, it was. confirmed. The High 
Court in second appeal, held that the mortgagee acknowledged the 
mortgage and that, therefore, limitation starts running from the date of the 
acknowledgement by the respondents predecessors-in-interest which would E 
give fresh cause of action for filing a suit for redemption ·and possession. 
Indisputably, the gift deed executed by the donor in .favour of the 
respondent-donee clearly mentioned the mortgage and made a part of the 
· deed of gift. Thus, the finding of the High Court that the recitals in the gift 
deed constitute acknowledgement is perfectly legal. Accordingly the 
finding that the suit was within limitation, is unassailable. Thereby, a F 
preliminary decree for redemption was granted giving appropriate time to 
the mortgagor to deposit the amount in the Court by decree dated April 29, 
1979. Thus this appeal by special leave. 
Pending the appeal, the appellant No. l died in July, 1984 and the 
appellant No. 5 died in the year 1987. It is also reported that respondent No. G 
l died in the year 1983 and application for substitution was pending. 
Substitution is allowed. 
Admittedly, no steps have been taken to bring the legal representatives 
of appellant Nos. l and 5 on record. By operation of Order XXII, Rule 4 
read with Rule 11 of Civil Procedure Code, ·when one of two or more H 
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SUPREME COURT REPORTS 
[199
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