PANDIT SRI CHAND AND ORS. versus M/S. JAGDISH PARSHAD KISHAN CHAND AND ORS.

Citation: [1966] 3 S.C.R. 451 · Decided: 04-02-1966 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed
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Judgment (excerpt)

, 
A 
B 
PANDIT SRI CHAND AND ORS. 
. v. 
M/S. JAGDISH PARSHAD KISHAN CHAND AND ORS. 
February 4, 1966 
[J. C. Sifm, S. M. SIKRI AND V. RAMASAWAMI, JJ.] 
Code of Civil Pr11cedure 
(Act V of 1908), 0. 41 r. 
4-Abatement 
of Appeal with reapect to one appellant-When operates as abatement 
of entire appeal-Supreme Court Rules, 1950, 0. 16 r. 14. 
The 1st respondent filed a suit against the 2nd respondent for re-
. covcry of money and in pursuance of an order of the Court directin1 
. c 
the 2nd respondent to furnish security for satisfaction of the decree that 
may be passed against him, the three appellants and two others stoo~ 
sureties agreeing jointly and oeverally to satisfy the decree. After the smt 
was decreed the first respondent applied for execution of the decree 
against the sureties. The •ureties raised the pleas that the surety bond 
wu not enforceable because it was not registered, and that the degree 
'. holder had committed acts by which the remedy of the sureties against 
judgment debtor 
was impaired, but the pleas were negatived by the 
D 
· executing court and the High Court. After the three appellants pre-
ferred an appeal to this Court, one of them died and since his legal 
. representatives was not brought on record, the appeal abated, as far as he 
was concerned. 
:E 
F 
G 
H 
On the question whether the appeal in so far as the other two appel-
lants were concerned also abated, 
HELD : Applications to bring on record legal representatives of a 
deceased appellant OT respondent were governed by 0, 16, r. 14 of the 
Supreme Court Rules, 1950, and the rule applied to all classes of appeals 
. including appeal<s arising from orders in execution. 
Because the repre--
sentatives of the deceased appellant were not brought on record within 
the time permitted by the rule and the delay in filing the petition to 
bring the representatives on record was not condoned, the 
appeal of 
the deceased appellant abated. Since the Liability of the sureties was 
joint and several, if this Court proceeds with the appeal of the other 
two sureties and holds that the High Court was in error in rejecting 
their contentions, there would be two inconsistent orders-one passed 
by the High Court holding that the surety bond was enforceable, and 
the other-of this Court that it was not enforceable. Therefore" the appeal 
must be held to have abated in its entirety. [454 D; 456 B; 457 BJ 
St11te of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636 nnd Rameshwar 
Prasad and others v. Shanbeharl Lal, [1964] 3 S.C.R. 549, followed, 
CIVIL APPLLATE JURISDICTION : Civil Appeal No. 425 of 
1963. 
Appeal by special leave from the judgment and order dated 
April 14, 1960 of the Punjab High Court (Circuit Bench at Delhi) 
. in LP.A. No. 17-D of 1960. 
Gopal Singh and Amar Singh, for appellant No. 1. 
J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant 
No. 3. 
452 
SUPREME COURT REPORTS 
(1966] 3 s.c.R· 
Bishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury 
A 
for respondent No. I. 
' 
Mohan Behari Lal, for respondent No. 3. 
S. K. Mehta and K. L. Mehta, for respondent No. 4. 
The Judgment of the Court was delivered by 
Shah, J. Messrs Jagdish Pershad Kishan Chand-hereain-
after called 'the first respondent'-<:ommenced suit No. 265 of 
1952 in the Court of the Senior Subordinate Judge, Delhi, against 
the second respondent for a decree for possession of goods hypo-
thccated to them by Messrs. Mudgal Motors Ltd.,-second res-
pondent in this appeal. The first respondent filed another suit 
No. 43 of 1952 for a decree for Rs. 42,914/10/- being the amount 
due at the foot of the hypothecation account, and for sale of the 
goods in satisfaction of the amount due. The two suits were 
consolidated for trial. In suit No. 43 of 1952 the first respondent 
applied for appointment of a receiver and the Court directed the 
second respondent to furnish security in the sum of Rs. 50,000/-. 
Pursuant to this order five persons stood sureties for satisfaction 
of the decree. It was recited in the surety bond dated April 21, 
1953, that the five sureties mortgaged the properties specified in 
the Schedule annexed thereto and jointly and severally agreed that 
if any decree was passed against the second respondent they shall 
comply with the same and in default the amount payable under 
the decree but not exceeding Rs. 50,000/- shall be realized from the 
properties mortgaged. This surety bond was not registered. Out 
of the five sureties, Sri Chand
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