MAHABIR PRASAD versus JAGE RAM & ORS.

Citation: [1971] 3 S.C.R. 301 · Decided: 06-01-1971 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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301. 
MAHABIR PRASAD 
v. 
JAGE RAM & ORS. 
January 6, 1971 
[J. C. SHAH, C.J. AND K. S. HEGDE, J.) 
Code of Civil Procedure (5 of 1908), 0. 41, r, 4-Scope of. 
The appellant( his wife, and his mother held a joint decree. Against: 
an order dismissing the applie.ation for execution of , the . decree, 
the 
appellant alone appealed joining the other two as party respondents. 
Pend:ng appeal his wife died. 
The High Court dismissed 
the 
appeal. 
holding that because the heirs and legal representatives of the appellant 
wife were not brought on rec<ird _within the period of limitation the appeal. 
abated in its entirety. The High Court was of the view that ·the power 
of the appellate court und~r O. 41. r. 4 Code of Civil Proceclure may be 
exercised only in those cases where there is a decree which proceeds upon 
a ground common to more persons than one and the appeal is filed by one 
01 more of them but not all and other persons who are interested in the 
result of the appeal are not made parties to the appeal. 
Allowing the 
appenl, 
HELD: (i) Power of the appellate court under O. 41, r. 4, C .P .C. to· 
very or modify the decree of a Subordinate Court arises when one onhe 
persons· out of many against whom a decree or an olrder had been made. 
on a ground which was common to him and others, has appealed, and 
that power may be exercised when 1!ther persons whQ were parties to the· 
proceeding before the Subordinate Court are eitl)er not impleaded as 
parties .to the appeal or are impleaded as respondent.. The power is not 
loM merely because the person who was jointly interested in the claim 
has been made a party respondent and on his death his heirs have not 
been brou11i•t on the record. 
Ratan Lal Shah v. Firm La/mandar Chhadamma/a/ & A.nr., [1970) !' 
S.C.R. 296, relied on. 
Rameshwar Prasad 4c Ors. v. M /s. Shyam Behari/al lagannath & Ors., 
(19641 3 S.C.R. 549, distinauished. 
(ii) 
Where in a proceeding a party dies and one of the leaal repre· 
scntatives is already on . the rec<ird in anotb'er capacity, it is only neces· 
sury that he should be described by an appropriate application made in 
that behalf that he is also on the record, ns an heir and legal represent&· 
llve. Even if there are other heirs nnd legal representatives and no appli· 
cation for impleding them is made within the ~od of llmitation pres•· 
cribed by the Limitation Act the proceeding will not abate. 
On that 
ground also the order passed by the High Court cannot be sustained. 
C1v1L APPELI,ATE Jua1so1cT10N: Civil Appeal No. 609 of 
1967. 
Appeal from the order dated March 3, 1965 of the Punjab 
High Court, Circuit Bench at Delhi in Execution First Appeal' 
No. 192-C of 1961. 
S. T. Desai and A. D. Mathur, for the appellant. 
v. D. Mahajan, for respondent No. 3. 
302 
SUPREME COURT REPORTS 
(1971 ]3 S.C.R. 
The Judgment of the Court was deliv~red by 
Shah, C. J. 
Jage Ram and two others-hereinafter collec-
tively called the defendants-were less~es of 
certain 
proper~y. 
belonging to Mahabir Prasad, his mother Gunwanti Devi and ~is 
wife Saroj Devi {collectively referred .to hefe)lfter as 'the plam-
tiffs'.) 
The plaintiffs comm:enced an act.ion in the court of the 
Subordinate Judge, First Class, Delhi, for a desree for Rs. ·61,750,1-
being the amount of rent due by 'the defendants' 
The Subordi-
nate Judge, Delhi decreed the suit. Execution of. the 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 conten-
tion and dismissed the application for execution. Mahabir Prasa~ 
alone appealed against that order and impleaded Gunwanti Devi 
and Saroj Devi- as party-respondents. Saroj Devi ·died in Novem-
_ber, 1962, and Mahabir Prasad applied that the name of Saroj 
Devi be struck of from the array of respondents. The High Court 
made an order granting the application "subject to all just excep-
tions". 
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 lintitation prescribed by the Limi-
tation Act the appeal abated in its entirety. Against that order, 
this appeal is preferred with certificate granted by ihe High Court. 
The decree in favour of Mahabir Prasad, Gunwanti Devi 
and Saroj Devi was a joint decree. 
Order 41 
r. 4 C0de of 
Civil Procedure· provides : 
"W

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