LexRAMAGYA PRASAD GUPTA & ORS. versus MURLI PRASAD
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A .8 c D E F G H RAMAGYA PRASAD GUPTA &: ORS. v. MURLI PRASAD April 3, 1972 63 [C. A. VAIDIALINGAM, D. G. PALEKAR AND K. K. MATHEW, JJ.J Appeal-Abatement~gal representative of respondent not lmp/ead· ed within period of limitation-Appeal when abates. An electHcyty undertaking was purchased by M (respondent No. 1 herein) and by a notification of the Bihar Government dated 13-4-1945 he was made the sole licensee. A partnership of five persons formed to purchase and run the said undertaking was in 1950 enlar~ to consist of ten partners, P, who held a one-anna share ill the partnership filed a suit in 1954 tor dissolution of the partnership and lendition of accounts. impleading as defendants the other nine partners including M. He also impleaded as Defendant No. 10 T to whom he had allegedly sold 3 pies share, out of his one-anna ·sh11te. J and his two brothers applied to the Coul:t to be mad•' party-defendants as they had a 6 pies share in P's one-anna share in the partnership. According to them P's share was held on behalf of a Hindu joint Family of which they had been members. They challenged the alleged transfer of 3 pies share to T. The trial court impleaded J and his brothers at Defendants 12 to 14. M contested P's suit by .claiming that he was the sole proprietor and licen_,e of the concern, that the alleged JY.lrtnership was in cbntra- vention of the Electricity Act and invalid, so that the plaintiff and the other defendants had no lawful claim to the assets of the partnership. The suit was decreed and Defendants 12 to 14 were held entitled to a 6 pies share. M's o\vn separate suit for a declaration that he was sole proprietor was dismissed by the Court. M filed 'appeals against the <l·ocision in both the suits. The High Court allow"1 his appeals and held the partnership to be illegal and M to be the sole proprietor of the con· ccrn. The present appellants filed appeal, in this Court. J and his brothers were impl.,aded in the appeal arising out of P's suit. But after J's death in 1969 his legal representatives were not impleaded by the appellants within the period of limitation. M contended that too appeals had abated, not only against J but as a whole. HELD : Per Vaidialingam and Palekar JJ :--The appeals could not re proceeded with and must be dismissed. As pointed out by this Court in Nathu Ram's case it is not correct to say that the appeal abates against the other respondents. Under certain circumstances the appeal may not be proceeded with· and is liable to he dismissed. But that is not because of the procedural defect but, as Mulla has pointed out, it is part of the substantive law. No exhaustive state- ment can be n1ade as to the circumstances under 'h·hich an apepal in such cases cannot proceed. But the courts. as pointed out in the above decision, have appfod one or the other of three tesk The Court will not proceed with an appeal (1) when the success of the appeal mav lead lo the court's coming to a decision which will be contradictory to the d>cree which had become final with re·spect to the same subject matter betweon the appellant and the deceased respondent : (2) when the appel- lant could not have brought th., action for the necessary relief against those respondents alone who are still before the Court and (3) when the 64 SUPREME COURT .REPORTS (1973] l S.C.R. decree against the surviving respondents, if the appeal •uco,eds, be in·· cff~tive that is to say it could not be successfully ellecuted. These thf""' tests as pointed out by this Court in Pandit Sri Chand's case are not cumulati~ tests. Even if one of tlr.!m ls satisfied the Court may dismiss the appeal. [ 69C-FJ The State of Punjab v. Nathu Ram, [1962) 2 S.C.R. 636, applied. Pcmdit Sri Chand and Ors. v, M/ S .lagdish Parshad Kishen Chand and Ors., [1966] 3 S .C.R. 451 at 455, referred to. At the time of filing his suit P was no longer the Karla of the family and could not represent the interest of Defendants 12 to 14. When in the suit Defendents 12 to 14 were made parties and after contest between them and P their share had been awarded to tl1'm as against P, it would be idle to say, as was contended on behalf of the appellants that for the purposes of the appeals Defendants 12 to 14 would not oo necessary parties. In the present appeals the Court had to proceed on the footing that J had been declared to have a share in the partnership assets
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