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Case Number

Appeal from Original Decree no. 537 of 1946, from a decision of Mr. Gauri Shankar Prasad Sinha, Additional Subordinate Judge of Gaya

Advocates

B.C De, R.K Sinha and Kumar Bahadur, for the appellants.
Lalnarain Sinha, Ambujakshya Ghose, Lakshmi Narain Sinha, L.M Sharma and A.K Prasad, for the respondents.

Judges

Imam, C.J
Narayan, J.

Acts

provisions of rule 33 of Order 41 of the Code of Civil Procedure
rule, rule 14A, to Order 41 of the Code of Civil Procedure
Order 41, rule 4, of the Code of Civil Procedure, 1908,
provisions of Order 41, rule 4, and Order 41, rule 20,
rule 33 of Order 41 of the Code of Civil Procedure.
Order 41, rule 20, of the Code of Civil Procedure,
SECTION 111 TRANSFER OF PROPERTY ACT
section 151 of the Code of Civil Procedure
provisions of rule 33 of Order 41
provisions of Order 41, rule 33,
Order XLI, rule 33.
Order 41, rule 33,

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Smart Summary

Concise Analytical Summary of the Opinion (Imam, C.J.)

Factual and Procedural Background

The plaintiffs (a father and son, with plaintiff no. 1 Rambharosa Singh as karta) filed a suit seeking a declaration of title to 6 annas 10 pies pokhta mukarrari interest in villages Nima and Kormatho (tauzi nos. 12443 and 12455), carved out of parent tauzi no. 4548. In May 1940 the plaintiffs purchased 2 annas 8 pies pokhta mukarrari interest belonging to Durga Singh in execution of a money decree, and delivery of possession was given by the Court.

Defendants Ramdhari Singh (defendant no. 6) and Kishundeo Tiwari (defendant no. 7) contested the suit; their primary contentions were that the plaintiffs had acquired nothing by the execution sale and that the 2 annas 8 pies mukarrari interest of Durga Singh merged in the 2 annas 8 pies milkiat (proprietary) share of Gobardhan Singh (defendant no. 1).

The Additional Subordinate Judge, Gaya, after detailed consideration of evidence, declared the plaintiffs' title to the 2 annas 8 pies mukarrari interest in villages Nima and Kormatho, passed a preliminary decree for partition, awarded mesne profits to be ascertained later, and ordered appointment of a commissioner to carve a separate takhta. The appellants in this appeal were Ramdhari Singh (appellant no. 1, defendant no. 6 below) and Kishundeo Tiwari (appellant no. 2, defendant no. 7 below).

A procedural complication arose when appellant no. 2 (Kishundeo Tiwari) died on 10 January 1950. An application for substitution was filed but processes and talbana for notice on respondent no. 9 were not filed in time; a peremptory order required compliance and, upon non-compliance, the application for substitution was dismissed. No substitution of legal representatives for the deceased appellant no. 2 took place. Later applications for adding parties were made (including an application on 20 November 1952), but ultimately the Court dismissed the application to add parties and concluded that the appeal as a whole had abated; the appeal was dismissed with costs.

Legal Issues Presented

Whether the appeal had abated in consequence of the death of appellant no. 2 and the dismissal of the application for substitution for non-compliance with a peremptory order.
If the appeal had abated as to one appellant, whether the appeal nonetheless could be continued as to the surviving appellant without creating conflicting decrees.
Whether this Court could, under Order 41, rule 33 (or the Court's inherent power under section 151 CPC), add parties or otherwise act so as to avoid the abatement and proceed with the appeal.
Whether, even if the Court had such jurisdiction under rule 33 or its inherent powers, it was appropriate to exercise that power in the present circumstances in view of laches and the valuable right said to have accrued to the respondents by reason of abatement.

Arguments of the Parties

Appellants' Arguments (as summarized in the opinion)

Mr. De, for the appellants, urged that under Order 41, rule 33 of the Code of Civil Procedure and under the inherent power of the Court (section 151 CPC), the Court should allow addition of parties so that the appeal could proceed despite the death of appellant no. 2 and the dismissed substitution application.
It was argued that respondent no. 9 was not interested in the appeal and had not contested the suit, and therefore the Bench's peremptory order should have applied only to substitution as against respondent no. 9 rather than dismissing the entire substitution application.
The appellants relied on decisions (including a Full Bench decision discussed in the opinion) to contend that the High Court's power under Order 41, rule 33 or inherent jurisdiction remained available in appropriate cases.

Respondents' Arguments (as summarized in the opinion)

The respondents contended that, because no substitution was effected and the application for substitution had been dismissed on account of the appellants' non-compliance, a valuable right had accrued to the respondents by reason of the appeal's abatement, and the Court should not readily add parties or destroy that right.
Respondents relied upon authorities (including Privy Council authority) for the proposition that an appellate court should not exercise the wide powers of rule 33 to deprive parties of rights which have become vested by the failure to appeal or by abatement.
They also pointed to the appellants' laches: appellants did not invoke a local exemption rule (Patna High Court's rule 14A to Order 41) nor seek to set aside the abatement or to restore the dismissed substitution application, and so equitable considerations weighed against adding parties now.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Apurba Krishna Mitra v. Ram Bahadur	Referenced in relation to the test for abatement of an appeal — whether allowing part of an appeal to proceed would create conflicting decrees; if so, the appeal as a whole abates.	The Court relied on the principle that if allowing part of an appeal to proceed would produce conflicting decrees, the appeal must be treated as abated as a whole; this supported the conclusion that the entire appeal had abated.
V.P.R.V. Ckokalingam Chetty v. Seethai Acha (Privy Council)	Interpretation of the phrase "is interested in the result of the appeal" in Order 41, rule 20; and commentary on the exercise of Order 41, rule 33 so as not to deprive parties of rights that have become vested.	The Court cited the Privy Council's remarks to underscore that an appellate court should be slow to act under rule 33 so as to destroy valuable rights acquired by respondents when appellants have allowed their appeals to become barred; this supported refusal to add parties in the present case.
Ramphal Sahu v. Babu Satdeo Jha (Full Bench)	Full Bench holding: where all plaintiffs or defendants appeal and the decree proceeds on a common ground, and one appellant dies with no substitution effected, the Appellate Court has no power under Order 41, rule 4 to reverse or vary the decree in favour of all.	The appellants relied on this authority as part of their submissions; the Court noted the decision but observed that other authorities and later observations left some scope for the appellate court's discretion under rule 33 or inherent power — though the Court ultimately found it inappropriate to exercise such power here.
First Appeal No. 232 of 1936 (decision discussed, incl. observations by Manohar Lall, J.)	Observation that while Order 41, rules 4 and 20 cannot be used to add the legal representative of a deceased appellant who has failed to get abatement set aside, the High Court's power to move under Order 41, rule 33 or its inherent power remains unfettered and may be exercised in peculiar circumstances.	The Court acknowledged this observation but, applying the facts (non-compliance, laches, no attempt to obtain exemption under local rule 14A, and the valuable right of respondents), concluded that even if such power existed it should not be exercised in this case and dismissed the application to add parties.

Court's Reasoning and Analysis

The Court proceeded in two linked strands: first, it set out the factual findings made by the trial judge and the legal basis for the trial judge's decree; second, it analyzed the procedural question of abatement and whether the appellate court could or should remedy the absence of a substituted appellant.

Findings at trial (as adopted in the opinion)

The Additional Subordinate Judge found that the mukarrari tenure had been created before 1882; therefore section 111 of the Transfer of Property Act did not apply and only the general law of merger would be relevant.
There was a single mukarrari tenure of 6 annas 10 pies in village Nima belonging to Gobardhan Singh; separately, Gobardhan had a 2 annas 8 pies undivided proprietary interest (milkiat) in both villages Nima and Kormatho.
Because the mukarrari interest and the proprietary interest were not co-extensive, there could not be merger of the two interests (i.e., the 2 annas 8 pies mukarrari interest did not merge into the 2 annas 8 pies milkiat interest).
The 6 annas 10 pies mukarrari interest had been purchased by Durga Singh out of the joint family fund, indicating that Durga's sons had an interest in that mukarrari share.
On these factual findings the trial Court declared the plaintiffs' title to the 2 annas 8 pies mukarrari interest and passed a preliminary decree for partition and a claim for mesne profits.

Procedural analysis and application of legal principles

Because appellant no. 2 died and no substitution was effected (the substitution application having been dismissed for non-compliance with a peremptory order requiring service and talbana on respondent no. 9), the appeal of the deceased appellant had unquestionably abated.
The Court examined whether the appeal could nonetheless proceed as to appellant no. 1 alone. It applied the practical test — would allowing the surviving appellant's appeal to proceed, and possibly succeed, create conflicting decrees — and concluded that this would indeed be likely. Where such conflicting decrees would arise, the correct course is to treat the appeal as abated as a whole.
The appellants contended that the appellate Court could cure the defect by adding parties or otherwise exercising the broad power in Order 41, rule 33, or its inherent power under section 151 CPC. The Court analyzed the scope of rule 33 and observed that, while rule 33 confers wide discretion as to the decrees an Appellate Court may pass, it does not in express terms empower the Court to add parties where the appeal as a whole has abated. The Court emphasized that abatement confers valuable rights on respondents, and those rights should not be lightly destroyed by adding parties at the appellate stage.
The Court referred to Privy Council authority and Full Bench authority to illustrate caution in using rule 33 to deprive parties of rights acquired by default or abatement. Although earlier observations in First Appeal No. 232 of 1936 suggested that the High Court's power under rule 33 or inherent jurisdiction remained available in exceptional cases, the Court stressed that such power must be exercised sparingly and only in peculiar circumstances. In the present case the appellants had not sought relief by available local procedures (such as exemption under Patna High Court's rule 14A) nor moved to set aside the abatement or restore the dismissed substitution application; their failure amounted to laches.
Balancing these factors, the Court concluded that even if it had power to add parties, the circumstances did not justify exercising it. Doing so would unjustly deprive the respondents of a valuable right obtained by reason of the appellants' inaction. Consequently the application for adding parties was dismissed, and the preliminary objection that the appeal had abated succeeded.

Holding and Implications

The appeal as a whole has abated and is dismissed with costs.

Implications:

Direct effect on the parties: The decree of the Additional Subordinate Judge in favour of the plaintiffs — declaring their title to the 2 annas 8 pies mukarrari interest in villages Nima and Kormatho, granting a preliminary decree for partition, and entitling plaintiffs to mesne profits (to be ascertained) — remains in force against the appellants. Because no substitution was effected for the deceased appellant, the decree as to that (deceased) party stands and cannot now be disturbed in this appeal.
On remedial powers: The Court declined to exercise Order 41, rule 33 or inherent jurisdiction to add parties or otherwise nullify the consequences of abatement in the factual circumstances of this case, emphasizing that such powers must not be used to deprive respondents of valuable rights that have accrued through an appellant's laches.
Precedential effect: The opinion applies and synthesizes existing authorities on abatement, the limits of Order 41, rule 33, and the exercise of inherent jurisdiction, but the Court did not purport to lay down a new general rule superseding the cited authorities. The decision is an application of established principles to the facts before the Court.

Disposition in the original opinion: "Appeal dismissed." (Narayan, J., agreed.)

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Ramdhari v. Rambharosa

Imam, C.J:— This is an appeal against the decision of the Additional Subordinate Judge of Gaya who decreed the suit of the plaintiffs on contest against defendants nos. 6 and 7 and ex parte against the rest. He also ordered a preliminary decree for partition to be drawn up having declared the plaintiffs' title to the properties in the suit. He further held that the plaintiffs were entitled to get mesne profits which would be ascertained in subsequent proceedings and that on plaintiffs' petition a commissioner would be appointed to carve out a separate takhta of 6 annas 8 pies kham which is equivalent to 2 annas 8 pies pokhta out of 16 annas kham which is equivalent to 6 annas 10 pies pokhta of the mukarrari interest in tauzi nos. 12443 and 12455. When the appeal was filed the appellants were Ramdhari Singh, appellant no. 1, who was defendant no. 6 in the court below, and Kishundeo Tiwari, appellant no. 2, who was defendant no. 7 in the court below.

A preliminary objection has been taken that the appeal has abated. Before I deal with the preliminary objection it is necessary to state briefly what the case of the plaintiffs is.

The plaintiffs filed the suit for a declaration of their title to 6 annas 10 pies pokhta mukarrari interest in villages Nima and Kormatho bearing tauzi nos. 12443 and 12455. These tauzis were carved out of the parent tauzi no. 4548. The plaintiffs, father and son, are members of a joint family of which plaintiff no. 1, Rambharosa Singh, is the karta. They had purchased 2 annas 8 pies mukarrari interest in villages Nima and Kormatho belonging to Durga Singh in execution of a money decree in May, 1940, and delivery of possession was given by the Court. The case of the plaintiffs was that this 2 annas 8 pies pokhta mukarrari interest of Durga Singh in villages Nima and Kormatho was entirely separate and had nothing to do with the 2 annas 8 pies milkiat share of his son Gobardhan Singh, defendant no. 1. Defendants Ramdhari Singh, defendant no. 6, and Kishundeo Tiwari, defendant no. 7, were the real defendants who contested the suit of the plaintiffs. Their contention in the main was that the plaintiffs had acquired nothing by the execution sale in May, 1940, and that in any event the mukarrari interest of Durga Singh of 2 annas 8 pies after his death merged in the 2 annas 8 pies milkiat share of Gobardhan Singh, defendant no. 1.

The Additional Subordinate Judge, after a very elaborate consideration of the evidence in the case, oral and documentary, held that the following facts were proved: (1) that the mukarrari tenure had been created before 1882 and, therefore, section 111 of the Transfer of Property Act did not apply in the case, but only the general law of merger would be applicable; (2) that there was only one tenure of 6 annas 10 pies mukarrari interest belonging to Gobardhan Singh in village Nima alone; (3) that Gobardhan Singh had 2 annas 8 pies undivided proprietary interest in villages Nima and Kormatho, while he had 6 annas 10 pies mukarrari interest in village Nima; therefore, there could not be any merger of these two interests; and (4) that Gobardhan Singh alone had 2 annas 8 pies proprietary interest in these two villages, while 6 annas 10 pies mukarrari interest was purchased by Durga Singh from the joint family fund and, therefore, the sons of Durga had some interest in this mukarrari share. In the circumstances, he thought it was clear that there was no merger of mukarrari and proprietary interest of 2 annas 8 pies as stated by the defendants up to the year 1919. He further held that the evidence of the defence witness no. 7 clearly shows that even after the Collectorate partition he or his father did not intend that 2 annas 8 pies mukarrari interest should merge in the 2 annas 8 pies proprietary interest. He was further satisfied that they were interested in keeping the two interests separate from each other. He accordingly, as I have already stated, declared the plaintiffs' title to 2 annas 8 pies mukarrari interest in villages Nima and Kormatho and passed a preliminary decree for partition.

The preliminary objection which has been taken that the appeal has abated arises in this way. Kishundeo Tiwari, appellant no. 2, died on the 10th of January, 1950. An application for substitution was filed on the 21st of March, 1950. On the 24th of April, 1950, talbana was filed, but it appears that notice had not been served on respondent no. 9. Time was given to the appellants to file fresh processes for notice on respondent no. 9, but this was not done. Ultimately the matter was placed before the Bench which while giving further time passed a peremptory order to the effect that if processes and talbana were not filed within the time allowed regarding fresh notice on respondent no. 9 the application for substitution in place of the deceased appellant no. 2 would be dismissed. On the 20th of November, 1952, an application for addition of parties was filed. No application for setting aside the abatement or for the restoration of the application for substitution had been filed.

Mr. De on behalf of the appellants has urged that under the provisions of Order 41, rule 33, and under, the inherent power of the Court under section 151 of the Code of Civil Procedure this Court should allow addition of parties. Respondent no. 9 was not in the least interested in the appeal and had, it appears not contested the suit of the plaintiffs. The peremptory order made by the Bench should have been that the application for substitution as against respondent no. 9 only would stand dismissed if the processes and talbana concerning that respondent were not filed within the time allowed and not that the entire application for substitution would be dismissed. It seems to me, however, that at this stage we cannot sit in appeal over the order actually made by the Bench. It was the duty of the appellants to have pointed out to the Bench, that the presence of respondent no. 9 was unnecessary and service of notice upon him may be dispensed with. The appellants, however, did not do so and as matters stood before the Bench the order could not, in my opinion, be in any other form than it was. Be that as it may we have to take the order as it was made and that order is to the effect that the application for substitution in place of the, deceased appellant no. 2 would stand dismissed if the processes and talbana for the service of notice on respondent no. 9 were not filed within the time allowed. Admittedly, the processes and talbana were not filed within the time allowed and the application for substitution stood dismissed. The result has been that in place of the deceased appellant no. 2 no substitution has taken place. The consequence of no substitution of legal representatives in place of deceased appellant no. 2 having taken place has to be ascertained in order to determine as to whether the whole appeal has abated. It cannot be doubted that so far as the appeal of appellant no. 2 is concerned it has abated. The decree passed by the Additional Subordinate Judge as against the deceased appellant no. 2, therefore, stands, and according to that decree the plaintiffs' title to 2 annas 8 pies mukarrari share in villages Nima and Kormatho has been declared and a preliminary decree for its partition has been made and the plaintiffs have been declared to be entitled to mesne profits. If the appeal of appellant no. 1 is allowed to be continued and the decree of a similar nature against this appellant is set aside, there would be in existence two conflicting decrees. The defence of appellant no. 1 and the deceased appellant no. 2 Was substantially the same, namely, that the plaintiffs had acquired nothing by the sale in execution of their money decree and that in any event there was merger of the 2 annas 8 pies mukarrari share in the 2 annas 8 pies milkiat share of Gobardhan Singh, defendant no. 1, son of Durga Singh. It is not permissible to allow the existence of conflicting decrees. One of the tests as to whether an appeal as a whole has abated is as to whether if the appeal succeeds there will be in existence conflicting decrees. If such be the position, then the appeal as a whole abates and not partially. In my opinion, different considerations arise between the abatement of a suit and the abatement of an appeal because in a suit if there is an abatement it is before the passing of a decree and the question of conflicting decrees coming into existence does not arise. I may refer to the case of Apurba Krishna Mitra v. Ram Bahadur. It seems to me that no substitution of legal representatives in place of the decease appellant no. 2 having taken place, in the circumstances of this case it must be held that the appeal as a whole has abated and not merely that the appeal of the deceased 1 appellant no. 2 only has abated.

It was, however, urged that under Order 41, rule 33, it was permissible for this Court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and that this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, In my opinion, while the provisions of rule 33 of Order 41 of the Code of Civil Procedure give wide powers to this Court as to the nature of the decree which it should pass, in terms, the provisions of rule 33 do not empower the Court to add parties where the appeal as a whole has abated. The abatement of an appeal results in a valuable right accruing to the respondents, and if the Court readily added parties which would result in such a valuable right being destroyed it would be acting far beyond what was contemplated in rule 33 of Order 41 of the Code of Civil Procedure. In the case of V.P.R.V Ckokalingam Chetty v. Seethai Acha, their Lordships of the Privy Council were considering as to what is the meaning of the words “is interested in the result of the appeal” appearing in Order 41, rule 20, of the Code of Civil Procedure, and Sir John Wallis delivering the judgment of the Privy Council observed that giving these words their natural meaning it seems impossible to say that in that case the defendants against whom the suits had been dismissed, and as against whom the right of appeal had become barred, were interested in the result of the appeal. Sir John Wallis then observed as follows:—

“The Appellate Court was then asked to take action under Order XLI, rule 33. That rule empowers an Appellate Court to pass any decree and make any order which ought to have been passed or made, and to make or pass such further decree or order as the case may require, and provides, further, that this power may be exercised notwithstanding that the appeal is as to part only of the decree, and ‘may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection’.

Here the plaintiff, whose suits had been dismissed against all the defendants, failed to appeal against the decrees in so far as they affected some of them and allowed the appeal as against them to become barred. In these circumstances the Appellate Court, in the exercise of their, discretion, refused to take action under the rule so as to deprive these defendants of the very valuable right which they had acquired in consequence of the plaintiff's failure to appeal against the decrees in so far as they affected them. Assuming that under this rule the Court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, their Lordships see no sufficient reason for interfering with the refusal of the Appellate Court to do so in this instance.”

In the present case the respondents have certainly acquired a valuable right because the appeal having abated the decree in favour, of the plaintiffs stands and an Appellate Court should not readily deprive the respondent-plaintiffs of the valuable right accruing to them as the result of the appeal having abated. Mr. De, however, was not unmindful of the decision of the Full Bench of this Court in the case of Ramphal Sahu v. Babu Satdeo Jha, where it was held that in the case of all the plaintiffs or defendant's appealing from a decree, and the decree appealed from proceeds on a ground common to all the plaintiffs or defendants, and one of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned is refused, the Appellate Court has no power under Order 41, rule 4, of the Code of Civil Procedure, 1908, to reverse or vary the decree in favour of all the plaintiffs or defendants. He, however, pointed out that in spite of this decision, which was as the result of a reference made to the Full Bench in First Appeal no. 232 of 1936 (decided on the 6th May, 1941), their Lordships who heard that First Appeal held that the High Court's power to move under Order 41, rule 33, or under its inherent power remained unfettered to be exercised in the peculiar circumstances of each case. The learned Judges who decided First Appeal no. 2321 of 1936 were parties to the decision of the Full Bench in the case of Ramphal Sahu v. Babu Satdeo Jha. Manohar Lall, J., who delivered the judgment in the First Appeal, however, did make the following observation:—:

“Having examined the authorities strongly, relied upon by the learned Advocate for the respondent, I am inclined to the view that although it is true that the provisions of Order 41, rule 4, and Order 41, rule 20, cannot be applied to add the legal representative of a deceased appellant who has failed in getting an abatement of the appeal set aside, that these provisions cannot also be invoked to make the legal representative a party to the appeal when he was not a party to the suit in the Court below, but the jurisdiction of the High Court to move under Order 41, rule 33, or under its inherent powers remains unfettered to be exercised in the peculiar circumstances of each case always bearing in mind that the Court should be slow to exercise that discretion merely to aid one party against the other.”

The application for substitution in the present appeal stood dismissed for non-compliance of a peremptory order and no substitution has taken place in the place of the deceased appellant no. 2. The Patna High Court has added a rule, rule 14A, to Order 41 of the Code of Civil Procedure which enables the Court in a proper case to exempt service of notice upon a particular party. The appellants did not ask, this Court to exercise any such power. They also did not apply for setting aside of the abatement of the appeal of appellant no. 2 and they did not apply to this Court for the restoration of the application for substitution which had been dismissed for noncompliance of the peremptory order. In these circumstances it appears to me that to allow the addition of parties now would be to aid one party guilty of laches and thus deprive the respondents of a valuable right which has accrued to them. Certain decisions were cited, apart from what was done in First Appeal no. 232 of 1936, to show that the Court has inherent power to add parties even if the provisions of rule 33 of Order 41 did not apply. On behalf of the respondents, however, certain decisions were also cited to show that the inherent power was not exercised. Assuming for a moment that it is permissible for this Court at this stage to add parties, whether under Order 41, rule 33, or under its inherent power, I am of the opinion that this is not a fit case in which such a power should be exercised. To do so would be to deprive the respondents of a Very valuable right which accrued to them entirely due to the laches of the other side. The application for adding parties is accordingly dismissed.

In my opinion, the preliminary objection must succeed and it must be held that the appeal as a whole has abated and it must be dismissed as such with costs.

Narayan, J.:— I agree.

S.H

Appeal dismissed.

Ramdhari v. Rambharosa

Concise Analytical Summary of the Opinion (Imam, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as summarized in the opinion)

Respondents' Arguments (as summarized in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ramdhari v. Rambharosa

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