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2012 DIGILAW 1071 (RAJ)

Barji v. Mangu

2012-04-26

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—Heard learned counsel for the appellants. 2. The defendant-appellants have preferred this civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned order dated 11.8.2008 passed by Additional District Judge (Fast Track) No.3, Ajmer camp at Kishangarh in Civil Regular Appeal No.66/2007 whereby the learned appellate Court by allowing an application under Order 22 Rule 3, 9 read with Section 151 CPC filed by the plaintiff-respondents dismissed the appeal filed by the appellants as abated. 3. Brief relevant facts for the disposal of this appeal are as below: (i) Late-Shri Mangu Ram (original plaintiff) filed Civil Suit No.110/2007 against Late Smt. Barji (original defendant) for specific performance of agreement to sell with the averment that Smt.Barji Devi agreed to sell her share in the suit property in lieu of sale consideration of Rs.15,000/- to him and in this regard an agreement to sell was also executed on 25.2.1985. The suit filed by the original-plaintiff was decreed by the trial Court vide judgment and decree dated 27.10.1999. (ii) Against the judgment and decree passed by the trial Court original-defendant-Smt.Barji filed Regular Civil Appeal No.66/2007 before the first appellate Court i.e. Additional District Judge (Fast Track) No.3, Ajmer camp at Kishangarh under Section 96 CPC. (iii) During pendency of that appeal original-defendant-Smt.Barji died and in her place her two sons Shri Shravan and Teju and her daughter Smt.Kamla were substituted as party defendant-appellants in the appeal. (iv) During pendency of that appeal original-plaintiff-Shri Mangu also died and in his place his legal representatives were substituted as party plaintiff-respondents. (v) During further pendency of the appeal before the first appellate Court one of the substituted legal representatives of the original-defendant i.e. Smt.Kamla also died on 11.11.2006 and an application under Order 22 Rule 3 CPC was filed on 13.12.2007 i.e. after expiry of more than one year from the date of death for bringing on record the legal representatives of the deceased-defendant-appellant-Smt.Kamla. No separate application under Order 22 Rule 9 CPC for setting aside the abatement and application under Section 5 of the Limitation Act for condoning the delay caused in filing the application was filed. No prayer was also made in the application that after condoning the delay caused in filing the application, the abatement to the extent of deceased-appellant-Smt.Kamla may be set aside. No prayer was also made in the application that after condoning the delay caused in filing the application, the abatement to the extent of deceased-appellant-Smt.Kamla may be set aside. (vi) An application was filed by the respondents to the effect that as the appeal has abated to the extent of deceased-appellant-Smt.Kamla and no application has been made for setting aside the said abatement and, therefore, as a consequence thereof the whole appeal is liable to be dismissed as abated. (vii) Reply to that application was filed by the present appellants and it was pleaded that as remaining legal representatives of the deceased-original-defendant-appellant-Smt.Barji are already on record, the whole appeal could not be dismissed as abated. (viii) The application filed by the respondents was allowed by the appellate Court and it was held that the whole appeal is liable to be dismissed as abated. Feeling aggrieved, the defendant-appellants are before this Court by way of this appeal. 4. Assailing the impugned order, learned counsel for the appellants submitted that during pendency of the first appeal original-defendant-appellant-Smt.Barji (against whom judgment and decree was passed by the trial Court) died and in her place her legal representatives including the present appellants were substituted as party appellants and, therefore, even if during further pendency of the appeal one of the legal representatives of the original defendant-appellant died, the remaining legal representatives i.e. present appellants sufficiently represented the estate of the original-defendant-appellant-Smt.Barji Devi and even if legal representatives of deceased-Smt.Kamla were not brought on record, the whole appeal could not be dismissed as abated but the learned appellate Court without considering the matter in a right perspective dismissed the whole appeal as abated. It was further submitted that it is well settled that if legal representatives of a deceased party are already on record even in any other capacity it is not necessary in every case that an application for bringing the legal representatives on record may be filed within the prescribed period. It was further submitted that on the death of Smt.Kamla, who was brought on record as one of the legal representative of deceased original-defendant-Smt.Barji, the right to sue devolved on the remaining legal representatives of Smt.Barji who were already on record as appellants and not on the legal representatives of deceased-Smt.Kamla herself. It was further submitted that on the death of Smt.Kamla, who was brought on record as one of the legal representative of deceased original-defendant-Smt.Barji, the right to sue devolved on the remaining legal representatives of Smt.Barji who were already on record as appellants and not on the legal representatives of deceased-Smt.Kamla herself. In support of his submissions, learned counsel for the appellants relied upon the cases of Smt.Bhonri and others vs. Shambhu Nath and others reported in AIR 1987 (Raj) 180 , Piara Singh and others vs. Natha Singh and others reported in AIR 1991 (SC) 1529 and Badri Narain Prasad Sah and others vs. Bansidhar Prasad and others reported in AIR 1982 (Patna) 138. 5. I have considered the submissions made on behalf of the appellants and also gone through the impugned order dated 11.8.2008 passed by the appellate Court as well as the relevant legal provisions and the case law. 6. I am of the considered view that in the light of the facts and circumstances of the present case and the relevant legal provisions and the case law, none of the submissions made on behalf of the appellants is legally tenable. It cannot be agreed that on the death of Smt. Kamla, one of the legal representatives of the deceased original-defendant-appellant-Smt.Barji, the right to sue survived not on her legal representatives but on appellants, who were already on record as other legal representatives of the deceased original-defendant-appellant-Smt.Barji. As soon as on the death of original-defendant-appellant-Smt.Barji during the pendency of the appeal, her legal representatives including her daughter-Smt.Kamla were brought on record, each of her legal representatives got a separate and independent right to further pursue the appeal and to challenge and assail the judgment and decree passed by the trial Court in the same manner as that of original defendant-appellant-Smt. Barji Devi. If during pendency of the appeal one of the legal representatives of the original-defendant-appellant died, the right to sue or to pursue the appeal to the extent of deceased-legal representative, who was made a party appellant in the appeal survived not on the other legal representatives of the original-defendant-appellant but on the legal representatives of the deceased legal representative i.e. on the legal representatives of deceased-appellant-Smt.Kamla herself. Therefore, as no application was filed within the prescribed period of 90 days for bringing legal representatives of deceased-appellant-Smt.Kamla on record, on the expiry of the prescribed period the appeal to the extent of deceased-appellant-Smt.Kamla abated automatically. In absence of an application for setting aside of abatement and for condonation of delay, the abatement to the extent of Smt.Kamla got finality. 7. Now, the question remains to be considered is whether as a resuslt of abatement of appeal to the extent of deceased-appellant-Smt.Kamla, the whole appeal stood abated or it could have been pursued further by the remaining legal representatives of deceased original-defendant-appellant-Smt.Barji i.e. the present appellants. In this regard the well settled legal position is that the appeal in its entirety shall abate when the success of the appeal in favour of the remaining appellant may lead to the Court's coming to a decision which will be in conflict with the decision between the deceased-appellant and the respondent and, therefore, which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect of the same subject matter between the deceased appellant and the respondent. The appeal in its entirety shall also abate when decree in favour of the surviving appellant, if the appeal succeeds, will be ineffective, as the decree which has attained finality against the deceased appellant could be successfully executed. The well settled legal position is also that when there decree is joint and indivisible against all the appellants, the appeal on behalf of other appellants also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased appellant. The abatement of an appeal means not only that the decree between the deceased appellant and the respondent has become final, but also, as a corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly as in absence of the legal representatives of the deceased appellant, the appellate Court cannot determine anything between the legal representatives of the deceased appellant and the respondent which may affect the rights of the legal representatives under the decree. The result of the abatement of the appeal against deceased-appellant is that the respondent can proceed against the legal representatives of the deceased appellant to execute the decree passed by the trial Court. 8. The result of the abatement of the appeal against deceased-appellant is that the respondent can proceed against the legal representatives of the deceased appellant to execute the decree passed by the trial Court. 8. In the present case, a decree for specific performance of agreement to sell and permanent injunction was passed against the deceased original-defendant-appellant-Smt.Barji and on her death during pendency of appeal the right to pursue the appeal further survived on her legal representatives including her daughter-Smt.Kamla and all the legal representatives of deceased-Smt. Barji got a common right to proceed with the appeal and to challenge the judgment and decree passed by the trial Court. On the death of one of the legal representatives-Smt.Kamla during pendency of appeal and the appeal being abated to her extent, the judgment and decree passed by the trial Court got finality to her extent and it is binding on her legal representatives also and it is executable against them. If the appeal on behalf of remaining legal representatives of deceased-original-defendant-appellant-Smt.Barji i.e. the present appellants is allowed to proceed further and if by any reason the same is allowed and the judgment and decree of the trial Court is set aside, the result would be that two conflicting decrees would be passed in the same matter, one in favour of the plaintiff-respondents and against the deceased-legal representative of the original-defendant and the other against the plaintiff-respondents and in favour of the present appellants. The well settled legal position is that conflicting decrees cannot be passed in the same matter and to avoid such a situation the whole appeal is liable to be dismissed as abated. The learned first appellate Court after considering the facts of the case in the light of well settled legal position has rightly held that the effect of not bringing the legal representatives of deceased-defendant-appellant-Smt.Kamla is that the whole appeal is liable to be dismissed as abated. As the matter is covered by the well settled legal position, I do not find any substantial question of law arising in this second appeal requiring consideration of this Court. So far as the case law relied upon by learned counsel for the appellants is concerned, it is of no help to them because it is not a case in which the right to sue or right to pursue the appeal further survived on the remaining appellants. So far as the case law relied upon by learned counsel for the appellants is concerned, it is of no help to them because it is not a case in which the right to sue or right to pursue the appeal further survived on the remaining appellants. Consequently, the appeal being meritless is, hereby, dismissed at the admission stage itself. The stay application also dismissed.