LexRAMESHWAR PRASAD AND OTHERS versus M/S. SHYAM BEHARILAL JAGANNATH AND OTHERS
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a s.c.R.. SUPRBNIB C0URT RBP0RTS fi4,9 RAMESHWAR PRASAD AND OTHERS tJ, M/s. SHY AM BEHARILALJAGANNATH AND OTHERS (K. SmrnA RAo, RAGHUBAR DAYAL and J. R. MunHoLXA.R JJ.) -Oivil Procedure-Joint tkme-A.ppeal filed jolnlly- Dw.th of one appellant-Failure to add kual repruB111<di11BB- M aintainability of appeal by aurviving appellanta-Ootk of Oivil Procedure, 1908 (Act 6 of 1908), 0. 22, "· 2,3, 9,11, 0. 41, "· 4,33. Nine persons induding K instituted a suit for ejectment and recovery of rent Against two defendants and obtained a decree, but on appeal, the DistrictJudge set aside the decree against defendant No. 2. The plaintifl's then filed a second appeal in the High Court on February 29, 1952, and while the appeal was pending K c!ied on September 8, 1955. No appli- cation for bringing his legal representatives on the record was, however, made within the prescribed time, and the appeal abated so far as K was concerned, When the appeal of the appellants other than K came up for hearing on September 1, 1958, a preliminary objection was taken for the respondents that the entire appeal had abated on the ground that the interest of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The appellants claimed that the appeal was maint· ainable on the grounds that the surviving appellant• could have filed the appeal against the entire decree in view of the provisions of 0. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of Kand the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the who!e decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well. Held (1) that the provisions of r. 4 of 0. 41 of the Code of Civil Procedure were not applicable, since the second appeal in the High Court was not filed by anyone or by even some of the plaintiffs as an appeal against the whole decree, but filed by all the plaintiffs jointly, and the surviving appel· . . ' ""' $, 550 SUPREME COURT REPORTS [1964] VOil.. J9fij lants could not be said to have filed the appeal as represeat- RcaubJor Prasad ing K. • •· . (2) that an appellate court had no power to proceed with M/1 SA.- Bo/tdrilol the appeal and to reverse and vary the decree in favour of all JqanMlh the plaintiffs or defendants under 0. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on a ground comm· on to all the plaintiffs or defendants, if all the plaintiff'• or the defendants appealed from the decree and any of them died iiitd the appeal abated so far as he was concerned under 0. 22, r. 3. floghut111 D•µI 11 Ramphal Sahu v. Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Okand v. Bakleo Sahai Ganga Sakai, 1.L.R. 15 Lah. 667; Baij Nath v. Ram Bharoae, I.L.R. 1953 (2) AIL 434; Nanak v. Ahmad Ali, A.I.R. 1946 Lah. 399; Pyare!al v. Sikhar Ohand, I.L.R. 1957 M.P. 21; Raghu Sutar v. NrusinghfJ Nath, A.I.R. 1959 Orissa 148; Venkata Ram Rao v. Narayana, A.I.R. 1963 A.P. 168 and Sonahar Ali v. Mukbul Ali, A.I.R. 1956 Assam 164, approved. Skripad Balwanl v. Nagu Kuskeba, I.L.R. 1943 Bom. 143; Satula Bhattachariya v. Asiruddin Shaikh, I.L.R. 61 Cal. 879 and Somasundaram Okettiar v. Vaitkilinga Mutlaliar, I.L.R. +o Mad. 846, disapproved. (3) that the provisions ofO. 41, r. 33 were 'not &PJ>li- · cable since the appeal by the surviving appellants was not competent in the circumstances of the case. Mohomed Khaleel Shim & Sona v. Lu Tanneriea, 53 I.A. 84, relied on. CIVIL APPELLATE JuRISDIGTION : Civil Appeal No. 577 of 1961. Appeal by special leave from the judgment and decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No. 448 of 1952. Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, for the appellants. O. B. Agarwala, and J.P. Goyal, for the res- pondent No. I. · 1963. May 3. The Judgment of the Court was delivered by RAGHUBAR DAYAL J.-The facts leading to appeal, by special leave, are tl\ese. 3 s.c.R. SUPREME COURT RBPORT8 551 persons, including Kcdar Nath, instituted a suit for ejectment and recovery of rent against two defen• dants on the allegation that defendant No. I was the tenant-in-chief who had sub-let the premises to de
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