Bageshwar Prasad v. Ram Prakash — 1965 DIGILAW 384 (ALL)

JUDGMENT Gangeshwar Prasad, J. - The question involved in the appeal is whether the appeal has abated. 2. A suit for partition of a certain immovable property was filed against the defendants-appellants by one Smt. Chameli Devi who claimed a moiety share in the property. Smt. Chameli Devi died during the pendency of the suit and her three sons including Ram Niwas were then substituted as her legal representatives. The suit was dismissed by the Additional Civil Judge Bijnor on 21-3-1951. On appeal the learned District Judge of Bijnor framed some new issues in the case and called for the findings of the Civil Judge on those issues. After receiving the findings the District Judge allowed the appeal, reversed the decree of the Additional Civil Judge, and passed a preliminary decree for partition on 20-1-1960. Against this preliminary decree the defendants preferred a second appeal in this Court. During the pendency of the appeal in this Court Ram Niwas plaintiff-respondent died in July 1952. Application for substitution of the legal representatives of Ram Niwas was made by the defendants-appellants on 19-2-1963 and it was prayed that the delay in filing the substitution, application be condoned. In support of this application, the defendants-appellants filed an affidavit of Lala Bageshwar Prasad defendant-appellant No. 1 in which he stated that he came to know in January 1963 that Ram Niwas died in July 1962, leaving the persons mentioned in the affidavit as his legal representatives. All relevant informations for the purpose of an application for substitution was, therefore, admittedly at the disposal of the defendants-appellants in January 1963. It may here be mentioned that while in the application for substitution it was stated that the appellants (meaning thereby Lala Bageshwar Prasad) received the information mentioned above in the third week of January 1963, what was said in the affidavit was that the information was received by Lala Bageshwar Prasad in the month of January 1963. However, as noticed above, the application for substitution was made on 19-2-1963 and there is nothing either in the application for substitution or in the affidavit filed in support of it to explain why the application was not presented before that date. This is, therefore, not a case in which he defendants-appellants can invoke the benefit of Sec. 5 of the Limitation Act, and, indeed, their learned counsel has not urged that they are entitled to that benefit. This is, therefore, not a case in which he defendants-appellants can invoke the benefit of Sec. 5 of the Limitation Act, and, indeed, their learned counsel has not urged that they are entitled to that benefit. What has been contended by the learned counsel is that i;he death of Ram Niwas having taken place subsequent to the passing of the preliminary decree, Or. XXII, Rule 10 of the C. P. C. would apply to the case with the result that there would be no abatement of the appeal and the defendants-appellants may continue the prosecution of the appeal against the legal representatives of Ram Niwas also by leave of the court. It is the soundness of this contention alone that has to be examined in this appeal. 3. Two obvious things may be stated at the very outset. The first is that Order XXII, Rule 11 of the C. P. C. makes the preceding rules of the Order apply to appeals and has the effect of extending, in their application to appeals the meaning of the words plaintiff, defendant, suit and naturally also of the word right to sue so as to respectively include appellant, respondent, appeal and right to appeal. The other is that Order XXII, Rule 10 of the C. P. C. is a residuary provision and its application is restricted to those cases which are not covered by the rules preceding it. The point for determination, therefore, is whether the situation in the instant case is within or outside the scope of the rules preceding Rule 10 of Or. XXII of the C. P. C. 4. The relevant rule of Or. XXII in the present case is Rule 4. Reading it in the light of the extention of its meaning effected by Or. XXII, Rule 11, it appears to be indisputable that upon the death of Ram Niwas respondent the right to appeal did not survive against the surviving respondents alone. Ram Niwas was one of the co-plaintiffs in the suit and a preliminary decree for partition in favour of all the plaintiffs as heirs and legal representatives of Smt. Chamelii Devi, the original plaintiff, was passed in their favour. Ram Niwas was one of the co-plaintiffs in the suit and a preliminary decree for partition in favour of all the plaintiffs as heirs and legal representatives of Smt. Chamelii Devi, the original plaintiff, was passed in their favour. Consequent upon the death of Ram Niwas his interest in the property in suit devolved upon his sons who are sought to be impleaded in his place and not upon the surviving respondents and the benefit of the decree passed in his favour also accrued to his sons. The surviving respondents cannot, therefore, alone represent the interest which is the subject-matter of the appeal and a complete representation of that interest requires also the presence of the legal representatives of Ram Niwas. In other words the decree passed in favour of the deceased respondent cannot be challenged in the absence of his legal representatives. The case, therefore, clearly falls within the purview of Or. XXII, Rule 4, and the result of not making within the time limited by law an application for impleading the legal representatives of the deceased-respondent was that the appeal abated as against the deceased-respondent. 5. The argument of the learned counsel for the defendants-appellants against the applicability of Or. XXII, Rule 4 to the present case is that as a suit does not abate after a preliminary decree has been passed therein, even an appeal against a preliminary decree would remain unaffected by the provisions of Or. XXII, Rule 4 and would not be subject to abatement. To my mind, this argument is patently untenable. 6. It is true that a snit in which a preliminary decree has been passed does not abate by reason of the fact that an application for substitution for the legal representatives of a party dying after the preliminary decree is not made. This has consistently been the view of the various High Courts before which the point has come at for consideration, excepting this Court which has expressed a contrary opinion in a number of decisions and has held that in the situation mentioned above there would be an abatement of the suit. An amendment was, however, introduced by this Court in Rule 12 of Or. XXII in 1931, and it provides that Rules 3, 4 and 8 of Or. An amendment was, however, introduced by this Court in Rule 12 of Or. XXII in 1931, and it provides that Rules 3, 4 and 8 of Or. XXII would not apply to proceedings in the original court after the passing of the preliminary decree where a final decree is also required to be passed. The position, therefore, now is that it must be accepted that the suit out of which this appeal has arisen would not abate even if no application for the substitution of the legal representatives of Ram Niwas is made. From this, however, it does not follow that even an appeal preferred against the preliminary decree passed in the suit would not abate for want of an application for substitution of the legal representatives of Ram Niwas. 7. The fallacy in the argument of the learned counsel for the defendants-appellants is that if the suit out of which an appeal has not itself abated, there can be no abatement of the appeal filed against a preliminary decree passed in the suit. A suit requiring the passing of preliminary and final decrees certainly continues upto the passing of the final decree and an appeal too is a continuation of the suit itself. But these propositions should not be stretched beyond their legitimate limits. While suit in which both preliminary and final decrees have to be passed does not terminate with the passing of the preliminary decree, a fundamental change in its character takes place after the passing of a preliminary decree. A preliminary decree settles a substantial part of the controversy between the parties and determines to a considerable extent their rights and obligations. The controversy so settled cannot thereafter be raised again and the rights and liabilities so determined cannot again be called into question except by means of an appeal against the preliminary decree. The appeal against the preliminary decree, although arising out for the suit and in a sense a continuation of the suit, is for some purposes and in some sense a separate and independent proceeding, instituted in another court and subject to another procedure including limitation. The correct position, therefore, is that while the suit keeps pending in the trial court even after the passing of a preliminary decree and is no longer subject to the provisions of Or. The correct position, therefore, is that while the suit keeps pending in the trial court even after the passing of a preliminary decree and is no longer subject to the provisions of Or. XXII, Rule 4, an appeal preferred against the preliminary decree remains subject to the said provisions and is not immune from abatement merely because the suit itself has become immune from abatement. The rights of a plaintiff obtaining a preliminary decree become crystallised as the result of the decree, and if they are challenged in appeal, the appeal will be governed by the procedure laid down in Order XXII, Rule 4 and will attract the consequences mentioned therein, if its provisions are not complied with. 8. The amendment made by this Court in Or. XXII, Rule 12 is very significant in this connection and it indicates that Or. XXII, Rule 4 will remain applicable to an appeal preferred against a preliminary decree. The rule as amended by this Court reads as follows: "Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order or to proceedings in the original court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit." 9. The words in the original court used in the rule carry the necessary implication that Rules 3, 4 and 8 of Order XXII are applicable to appeals against a preliminary decree. 10. The learned counsel for the defendants-appellants has cited a large number of decisions in the course of his argument but they are all decisions in which the question that had to be considered was whether a suit can abate after the passing of a preliminary decree and none of them was concerned with the question whether an appeal against a preliminary decree is subject to abatement or not. It is, therefore, wholly unnecessary for me to refer to those decisions. On the other hand there are clear and direct authorities in support of the proposition that an appeal against a preliminary decree is governed by Rules 3 and 4 and not by Rule 10 of Or. XXII and that such an appeal is subject to abatement. The question was discussed at length in the case of Baij Nath Ram v. Mst. XXII and that such an appeal is subject to abatement. The question was discussed at length in the case of Baij Nath Ram v. Mst. Tunkowati Kuer, A.I.R. 1962 Patna 285, which set at rest the conflict of decisions on the question in the Patna High Court and laid down the law in the following terms: "The correct view appears to be that whether there is an appeal from a decree, preliminary or final, and during the pendency of the appeal one of the appellants or respondents dies and the right to sue does not survive to the remaining appellants or against the remaining respondents, then Rule 3 or 4, as the case may be, applies and not Rule 10, and the appeal will abate if the legal representatives are not brought on the record within the time limited by law, as provided in sub-Rule (2) of Rule 3 and sub-Rule (3) of Rule 4." 11. The same view was taken in Kunj Behari Lal v. Ajodhia Prasad, A.I.R. 1947 Oudh 28, Dassumal Ramrakhiomal v. Mohamed Bux Amir Bux, A.I.R. 1937 Sindh 208. and Ramnath Kishanlal v. Ramgopal Bhaula, AIR 1951 Nagpur 434 . 12. It must, therefore, be held that the result of not filing an application under sub-Rule (1) of Rule 3 of Or. XXII within the time limited by law was that the appeal abated against Ram Niwas respdt. under sub-rule (3) of the said rule. It has already been noted that there is no explanation why even after the defendants-appellants had come to know of the death of Ram Niwas respondent in the third week of January 1963, no application for setting aside the abatement was made before 19th February 1963. The application for substitution and for condoning the delay has, therefore, to be rejected. 13. There is no doubt that having regard to the nature of the suit and the preliminary decree passed in favour of the respondents, the appeal cannot proceed against the surviving respondents alone and, indeed, the learned counsel for the defendants-appellants has frankly conceded that it cannot. The entire appeal has, consequently, to be dismissed. 14. In the result the application for substitution of the legal representatives of Ram Niwas respondent by condoning the delay in making it and the appeal are both dismissed with costs. Appeal dismissed.