Ambika Prasad Singh And Others v. Thakur Prasad Singh And Others

N. Untwalia, J.:— It is unfortunate that this appeal has to fail on a preliminary point. The plaintiffs-respondents first party filed a suit for specific performance of contract of sale by the defendants first party (respondents second party) in favour of the plaintiffs. In this suit the defendants second party (defendants Nos. 2 to 8) were impleaded as the contract was sought to be enforced against them also on the plea that they were subsequent purchasers of the properties in question with notice of the contract in favour of the plaintiffs. The suit was decreed by the trial court and the defendants were directed to execute and register a deed of sale in favour of the plaintiffs on payment of Rs. 77,000 by the latter to the former. Defendant Nos. 2 to 8 filed on 7-1-48 the present First Appeal No. 17 of 1948. Thereafter two more first appeals were filed. First Appeal No. 37 of 1948 was filed by the defendant first party and First Appeal No. 72 of 1948 was filed by the plaintiffs against such portion of the decree which was against them. The latter two first appeals have failed for non-prosecution on one ground or the other; and we are now concerned with First Appeal No. 17 of 1948.

2. Ambika Prasad Singh, appellant No. 1, died in June 1956, during the pendency of this first appeal and on the 17th of September 1956 an application was filed by the surviving appellants for substitution of the three sons of the deceased in his place. The plaintiffs-respondents objected to their substitution on two grounds, firstly, that the application was out of time as, according to them, Ambika Prasad Singh died on the 17th of June 1956; secondly, on the ground that Ambika Prasad Singh died leaving behind not only the three sons sought to be substituted but also a widow and daughters. The stand taken on behalf of the appellants was that Ambika Prasad Singh died on the 18th June, 1956, and, the ninetieth day being a holiday, this application filed on the ninety first day was in time. Their further case was that the widow had relinquished her entire interest in the disputed properties in favour of her three sons, and the learned counsel for the appellants could not state definitely on 3-1-57 when this matter was taken up as to whether Ambika Prasad Singh had left any daughter or not. In this view of the matter, this Court, by order dated 3-1-57, directed an enquiry to be made on the disputed questions, namely:

“(1) what is the exact date of death of Ambika Prasad Singh; (2) whether the said Ambika Prasad Singh left any other legal representatives apart from his three sons on ‘the date of his death; and (3) whether the widow had relinquished her interest in favour of her sons.”

3. The enquiry was made by the Subordinate Judge, 3rd Court, at Patna, and he submitted his report to the effect (i) that Ambika Prasad Singh died at 3 p.m on the 17th of June, 1956 and not at 2 a.m on the 18th of June 1956; (ii) that Ambika Prasad Singh died leaving a widow and two daughters apart from the three sons; and (iii) that the widow could not validly surrender her interest in favour of her sons without a registered document. In view of this adverse report against the appellants, an application was filed on 27-9-57 on their behalf Praying that the delay of two days in making the application for substitution might be condoned and the abatement might be set aside. The report as well as the application was put up before Ramaswami C.J, and Raj Kishore Prasad J., on 27-9-57 and, after having heard the learned counsel on behalf of the Icon-testing partes, their Lordships accepted all the findings of the learned Subordinate Judge and refused to condone the delay made in filing the application for substitution. The application for substitution filed on behalf of the appellants (which has been, by mistake, called an application by the sons of the deceased appellant in the order dated 27-9-57) was rejected and the fact was recorded that the first appeal had abated so far as appellant, Ambika Prasad Singh, was concerned. No opinion, however, was expressed as to what would be the effect of this order upon the fate of the appeal as a whole and that matter was left to be decided by the Bench which might ultimately hear the first appeal. When the appeal came up for hearing before us, learned counsel for the remaining appellants and the plaintiffs-respondents addressed us at great length on the preliminary point as to whether the whole appeal has become incompetent by reason of the abatement of the appeal of Ambika Prasad Singh or whether the appeal could be heard on merits and, if thought fit, relief could be given to the appellants as well as to the legal representatives of the deceased appellant, Ambika Prasad Singh, under the provisions of O. 41, R. 4 of the CPC. Mr. P.R Das could not contend on behalf of the appellants that the decree was not a joint and indivisible decree and that relief could be given to the remaining appellants separately without touching the decree which was passed against Ambika Prasad Singh. But he contended that this was a fit case where the Court could and should exercise its power under O. 41, R. 4 of the CPC and should reverse or vary the decree in favour of all the defendants, irrespective of the question whether all and/or their legal representatives were now before the appellate court or not. He conceded that the Full Bench decision in Ramphal Sahu v. Satdeo Jha, ILR 19 Pat 870 : AIR 1940 Pat 346 (A), was directly against his contention; but he submitted that the case was wrongly decided and the question should be referred to a larger Bench for reconsideration of the view expressed in that case, or we should exercise our inherent powers under Section 151 of the CPC or our powers under O. 41, R. 33 of the Code, as was ultimately done in the first appeal of the Full Bench case by Harries, C.J, and Manohar Lall, J., who finally heard the first appeal, and should give relief to the appellants as well as to the legal representatives of Ambika Prasad Singh.

4. Mr. Lal Narayan Sinha appearing for the plaintiffs-respondents strenuously contended thatthe decision of the Full Bench case of ILR 19 Pat 870 : (AIR 1940 Pat 346) (A), was correct, that we cannot and should not exercise our inherent powers or powers under O. 41, R. 33 of the CPC in favour of the deceased or his legal representatives and that the whole appeal had, therefore, become incompetent. He further submitted that, in the facts and circumstances of this case, even if it be ultimately held that the decision in ILR 19 Pat 870 : (AIR 1940 Pat 346) (FB) (A), is wrong, powers under O. 41, R. 4 cannot be and should not be exercised because the Appellants filed an application for substitution in this Court deliberately making false statement as to the date of death of Atnbika Prasad Singh and tried to support it by committing forgeries and fabrications in the court below where the enquiry was held, and, secondly, because a decree for specific performance of contract is a double-edged decree and in essence is in favour of the defendant-appellants also and, so, in the garb of exercising the powers under O. 41, R. 4 of the Code, the Court cannot reverse or vary the decree in favour of Ambika Prasad Singh which is now for the benefit of the legal representatives.

5. Having given my most anxious considerations to the respective contentions of the parties, I venture to say with utmost respect that the decision of the Full Bench in (ILR 19 Pat 870 : (AIR 1940 Pat 346) (A), is wrong. Yet I would also observe that the point is not free from difficulty and views have been expressed from time to time throughout India by various High Courts in favour of or against the view expressed in the Full Bench case of this Court, and there is no authoritative decision one way or the other either of the Privy Council or of the Supreme Court. In such a situation, the view expressed in ILR 19 Pat 870 : (AIR 1940 Pat 346) (FB) (A), has held the field and governed a very large number of cases so for as this Court and courts subordinate to it are concerned for about 18 years now and it will not be advisable to refer this point to a larger Bench for reconsideration. We heard this matter at length because doubts have been expressed in various decisions of this Court about the correctness of the Full Bench decision of ILR 19 Pat 870 : (AIR 1940 Pat 346) (A). I would, therefore, briefly give my reasons for taking a view that the decision of ILR 19 Pat 870 : (AIR 1940 Pat 346) (FB) (A) is net correct and yet for refusing to refer this case to a larger Bench.

6. The point at issue is:—

“Has the appellate court power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under O. 41, R. 4 of the CPC, if all the plaintiffs or defendants appeal from the decree 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, has been refused, always assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants?”

7. This question as quoted above was answered in the negative by the Full Bench in Ramphal Sahu's case (A). Several cases of the various High Courts in India have been noticed in the Full Bench case taking views either for or against the above proposition and the ratio of the Full Bench case is:

“Order 22, Rr. 3 and 11 of the CPC, deal with cases in which one of a number of appellants has died. By reason of the provisions of those Rules, the appeal in so far as it concerns the deceased appellant abates and as the abatement, if not set aside, has the force of a decree, the matter becomes final as against the deceased appellant. In my judgment, there is nothing in O. 41, R. 4 of the CPC, which permits the Court to disturb that finality of the decree as against the deceased appellant. To hold that O. 41, R. 4 of the CPC, applies to a case such as the present one is to hold that a Court can reverse or vary a decree in favour not only of a person who is not before the Court but in favour of a person who is no longer in existence. It appears to me that before a Court can vary a decree in favour of the representatives of the deceased appellant such representatives must be brought on to the record. The Court could, of course, do so if a rule expressly empowered it; but in my judgment O. 41, R. 4 of the CPC, does not give such a power. As I have stated earlier, that rule is framed on the assumption that all plaintiffs or defendants in the suit are alive at the date of the passing of the appellate decree, O. 41, R. 4 of the CPC, cannot override or create an exception to O. 22, Rr. 3 and 11, and in the case of one or more appellants dying even where a decree proceeds on a ground common to all the matter must be governed common to all, the matter must be governed solely by the provisions of those latter rules. To hold otherwise is to hold that O. 41, R. 4 of the CPC, gives the Court power to set aside an abatement and to reverse or vary a decree which has become final against the deceased appellant.”

8. The question for consideration, therefore, is whether the effect of the abatement of the appeal of one of the appellants has the force of a decree of the appellate Court disposing of the appeal so far as the deceased appellant is concerned. If this view is correct, it is, no doubt, correct to say that the appellate Court thereafter will have no power to bring in aid the provisions of O. 41, R. 4 of the CPC, and to touch or vary the decree against the deceased appellant which has become final by reason of abatement of his appeal. If this view is not correct, then powers can be exercised, in appropriate cases, under O. 41, R. 4 of the CPC, and decree can be reversed or varied in favour of the parties who are not before the appellate Court, namely, the legal representatives of the deceased appellant. There is no question of bringing the legal representatives of the deceased appellant on record because O. 41, R. 4 of the CPC is meant for such a situation to enable the Court to exercise the powers when some of the parties are not on record. I will presently show that provisions of, O. 41, R. 4 of the CPC do not override or create an exception to O. 22, Rr. 3 and 11 of the CPC but are quite distinct and separate from it.

9. Order 22, R. 3 of the CPC provides that under sub-r. (1) in certain types of suits the legal representatives of the deceased plaintiff can be brought on the record and thereafter the Court shall proceed with the suit. If an application for substitution is not made within the time limited by law, under sub-r. (2) the suit shall abate so far as the deceased plaintiff is concerned. Similarly, under O. 22, R. 4 of the CPC also, if an application for substitution of the legal representative or the deceased defendant is not made within the time limited by law, the suit abates as against the deceased defendant. That is to say, the abatement of the suit does not take place merely by reason of death but takes place automatically when an application for substitution is not made within the time limited by law. Under O. 22, R. 9(2) of the CPC provisions have been made for setting aside the abatement under certain circumstances. A time-limit is also prescribed under the Limitation Act for making application for setting aside abatement and delay in filing such application is also condoned under Section 5 of the Limitation Act on a proper cause shown. But, if ultimately the suit abates, the effect of it is that no fresh suit shall be brought on the same cause of action, as provided in sub-r. (I) of R. 9, O. 22. By virtue of R. 11, O. 22, the word ‘plaintiff’ includes an appellant, the word ‘defendant’ a respondent and the word ‘suit’ an appeal. The effect of these rules, therefore, is that, if application is not filed for substitution within time, the appeal abates so far as the deceased appellant is concerned. Mr. Lal Narayan Sinha argued on the basis of these rules that, if no fresh suit can be brought on the same cause of action in case of abatement, it means that the abatement of suit by itself is a decree. Similarly, according to him, where an appeal abates, no fresh appeal can be filed in the cause and the result, therefore, is that, as soon as an appeal abates so far as the deceased appellant is concerned, it amounts to a decree of the appellate Court. I am unable to accept this contention. It will be noticed that the abatement of a suit under O. 22, R. 3(2) of the CPC. Is the abatement of the suit so far as the deceased plaintiff is concerned and the abatement of the suit under O. 22, R. 4(3) of the CPC is against the deceased defendant. Abatement by itself does neither finish the suit nor does it finish the appeal. If the suit can proceed in absence of the deceased plaintiff or the deceased defendant, it has got to proceed. If it cannot proceed, a final order adjudicating that the suit has abated and cannot, therefore, be proceeded with has got to be passed in order to finally dispose of the pending suit. Similarly, in the case of an appeal mere abatement of appeal of the deceased appellant or against the deceased respondent does not put an end to the appeal. Final orders have got to follow in the appeal adjudicating as to whether the whole appeal has got to fail because of the abatement or the appeal can proceed in absence of the deceased appellant or the deceased respondent. It is this final order either in a suit or in an appeal which is a decree and gives a right of appeal to the person aggrieved. In suits and appeal many considerations are of a common nature for holding whether the suit as a whole or the appeal as a whole has abated or not. It is in appeal only that a special consideration comes into play by virtue of the provisions of O. 41, R. 4 of the CPC. No such provision was possible in the case of a suit and similar considerations are, therefore, out of consideration so far as a suit is concerned. But, so far as the abatement of an appeal as a while is concerned, two questions are vitally and chiefly to be considered: one is as to whether the decree is divisible and the appeal of the surviving appellants or against the surviving respondents can proceed; and the other is whether reliefs can be given to the surviving appellants under the provisions of O. 41, R. 4 of the CPC. Unless both these questions are answered against the surviving appellants, the appeal cannot be held to have abated as a whole and it is this final order in the appeal which becomes a decree. The reason is that the pending suit or the pending appeal has got to finally end one way or the other and if it ends on the ground of abatement, provisions of O. 22 R. 9 of the CPC are attracted which bar a fresh suit on the same cause of action or a fresh appeal in the same cause. It is this final, formal expression of adjudication to the effect that the suit or the appeal has abate of that conclusively determines the rights of the parties with regard to the matter of abatement of the suit or the appeal. Unless that is done, the mere fact of abatement under O. 22, R. 3(2) or under O. 22, R. 4(3) does not come within the definition of the word ‘decree’ as defined in Section 2(2) of the CPC. If an analogy is permissible, I would like to state here that a suit or an appeal filed beyond time has got to be dismissed under Section 3 of the Limitation Act. The suit or the appeal, if barred, is barred on the day when it is filed, but the formal adjudication of the dismissal or the final termination of the suit or the appeal on the ground of limitation makes it a decree and appealable as such, though the other questions involved in the suit or the appeal may not be adjudicated and decided. In my opinion, therefore, the fact of abatement by itself does not operate as a decree unless there is formal expression to this effect by the court conclusively determining the rights of the parties on the ground of abatement. Unless this is done, there is no decree and it does not give any right of appeal to one single individuals I would illustrate my point by taking an example A, B and C file a suit. A dies and no substitution is made of his legal representatives within time. The suit automatically abates on expiry of pity days from the date of death of A. That by itself does not give-any right of appeal to anybody. The suit has to terminate. If it cannot proceed at the instance of B and C only, it has to be held that the whole suit has abated and, therefore, an order of dismissal of the-whole suit has got to follow. It will then and then, only that B and C or the legal representatives of A will get a right of filing an appeal. If it is the case of a sole plaintiff A, and he dies and no substitution is made within time, the suit abates as a whole but has got to be disposed of by passing an order of dismissal of the suit on the ground of abatement; and it is then and then only that the legal representatives of A, if they so choose, will have a right of appeal. The starting point of the period of limitation for appeal would be the final order of the court and not the fact of abatement. So far as an appeal is concerned, the present case is a good example to illustrate the point. Here, the order that the appeal of the deceased appellant, Ambika Prasad Singh, has abated was passed on 27-9-1957 and was passed on a con est as to the fact of abatement. Yet the appeal is still on the file and is going to be disposed of finally by that judgment. The legal representatives of the deceased appellant, Ambika Prasad hingh, in my opinion had no right of appeal against the order dated 27-9-57, even if they wished to challenge the order on the-ground that the appeal had not abated. It is only when the appeal will be disposed of finally that the legal representatives of Ambika Prasad Singh, if they so choose or are advised, and the other appellants will have a right of appeal against this appellate decree. In that view of the matter in my opinion, the mere fact of abatement of the appeal of the deceased appellant does not operate as a decree of the appellate court and does not prevent the exercise of powers under O. 41, R. 4 of the CPC. The appeal in this case was by seven appellants, and it is not correct to say that the order dated 7-9-57 operated as one decree of the appeal and the judgment now being passed will operate as another decree. The appeal is one; it may be by several persons, but what operates as a decree in the appeal is the final order passed in the appeal. I may here refer to the provisions of O. 23, R. 3 of the CPC where it is provided that in case of a part compromise or part satisfaction that compromise or satisfaction is to be recorded by the court which is to pass a decree in accordance therewith so far as it relates to the suit. I here lore, in case of a part compromise or satisfaction a coin-promise decree is passed which may not finally determine the suit or the appeal of the parties who have not compromised. But such a decree in part is not envisaged under the provisions of O. 22, Rr. 3 and 4 of the CPC.

10. Mr. Lal Narayan Sinha referred to the cases, hereinafter mentioned, for the proposition that an abatement operates as a decree. The cases are Brij Inder Singh v. Kanshi Ram, 44 Ind App 218 : AIR 1917 P.C 156 (B), Suppu Nayakau v. Perumal Chetty, AIR 1917 Mad 285 (C), Rahmunnissa Begum v. M.A Srinivasa Ayyangar, AIR ??? Mad 580 (D), Naimuddin Biswas v. Muniruddin Lushkar, AIR 1928 Cal 184 (E), Barju Biswal v. Kunja Behari Mahapatra*, ILR 10 Pat 471 : (AIR 1931 Pat 353) (F) Purushottaradas Sakalchand v. Devkaran Kesheoji, (AIR 1939 Nag 3) (G) and Nathaniel Uraon v. Mahadeo Uraon, AIR 1957 Pat 511 (H).

11. The Privy Council case was a case under the old Code and the other cases are cases under the present Code of Civil Procedure. In my opinion, no difference in principle is there because of the difference in the language of the old Code and the new Code so far as the relevant provisions relating to abatement are concerned. What is important to notice is that in the Privy Council case the facts were that substitution of the legal representatives had been ordered ex parte after the expiry of the period of limitation and on objection on behalf of the remaining defendant and the legal representative of the deceased defendant, again an ex parte order was passed that the suit had abated. This ex parte order of abating the suit was again reviewed and abatement was set aside by another presiding officer of the same court. Johnstone J., of the Chief Court of the Punjab, held, on certain grounds which are not necessary to be detailed here, that the last order was bad and restored the ex parte order which abated the suit. The Privy Council allowed the appeal on other grounds but affirmed one remark of Johnstone, J. In his judgment to the effect that the order abating the suit was pronounced ex parte without giving the opposite party an opportunity of hearing, and the order abating the suit, looking to the terms of S. 371 of the old side (corresponding to O. 22, R. 9 of the present Code) was emphasised to be really tantamount to a judgment in favour of the defendant. In the opinion of the Privy Council, therefore, the order abating the suit had finished the suit and consequently it was a judgment in favour of the defendant.

12. In AIR 1917 Mad 285 (C) the facts were that an additional issue as to whether the suit had abated was framed and the District Munsif decided this issue in favour of defendant No. 2 and dismissed the suit with costs on 17th March, 1913. It was against this order of the Dstrict Munsif that a civil revision application was filed before the Madras High Court and Ayling, J., dismissed the revision petition on the ground that the decree of the District Munsif was appeal able and hence no petition lay under Section 115 of the CPC. On appeal, the Letters Patent Bench affirmed the decision and held that, where the suit is finally determined by the order of abatement, it is a decree.

13. In AIR 1920 Mad 580 (D) an order was made on 16th October, 1912 declaring that the suit abated, and, in those circumstances, it was held, referring to the case of the Privy Council in 44 Ind App 218 : (AIR 1917 P.C 156) (B):

“The dictum of the Judicial Committee that an order of abatement operates as a judgment in favour of the defendant shows that in effect no distinction is made between a judgment obtained on merits and a judgment obtained on failure to prosecute the suit.”

14. In AIR 1928 Cal 184 (E) the question arose under similar circumstances as of the present case as to whether provisions of O. 41, R. 4 of the CPC could be applied to such a case or not and in those circumstances it was held that the order of abatement, namely, that the appeal had abated so far as defendant No. 4 was concerned, was a judgment as between him and the respondents to the same extent as a judgment on merits. With respect I say that this is begging the question and the partial abatement cannot be deemed to operate as a final judgment of the appellate court in the appeal determining the rights of any.

15. In ILR 10 Pat 471 : (AIR 1931 Pat 353) (F), it was held that the order of the Munsif deciding as to whether the whole suit had abated or not would be appealable as a decree and, that being so, no reference lay to the High Court under order 46, R. 1 of the CPC.

16. In AIR 1939 Nag 39 (G), what has happened was that on abatement of the appeal before the lower appellate Court the cross-objection of the plaintiff had also been dismissed on the ground that the same had also abated, and an appeal was taken to the High Court against that order of the lower appellate Court. The question arose whether the order was an appealable order and it was held that no appeal lay as from an order but the order was a decree. Relying upon several authorities, it was held in this case that an order that the suit abates is appealable as a decree and, that being so, it would seem that an order that the appeal abates is also appealable as a decree; and, if it was so, there was no reason why an order that the cross objection abates should not be held to be a decree for the same reasons. The reasoning was that the order had conclusively determined the rights of plaintiff on his cross-objection.

17. The observations in AIR 1957 Pat 511 para 6 at p. 512 (H) are confined to the facts of that case and have not been made alter a full deliberation.

18. Mr. P.R Das submitted that abatement is automatic and does not operate as a decree. He submitted that a subsequent suit may be barred due to several reasons and that by itself would not make the order of abatement operate as a decree. He made reference to the analogous provisions of O. 2, R. 2 and O. 23, R. 1(3) to show that subsequent suits were barred on many considerations. In my opinion, simply because a suit is barred under some provision of the Code on the happening of a certain event, the happening of that event would not operate as a decree. But what operates as a decree is the final order in the suit or the appeal disposing of the same on the ground of the happening of the event. Mr. P.R Das relied upon the following cases for the proposition that abatement is automatic the cases are Hamida Bibi v. Ali Huseu Khan, ILR 17 All 172 (1); Churya v. Baneshwar, AIR 1926 All 217 (FB) (J); Ram Gopal v. Har Kishen, AIR 1925 Lah 598 (K); Hirisa Ratansa v. Janu, AIR 1937 Nag 88 (L); Alabhai Vajsurbhai v. Bhura Bhaya, AIR 1937 Bom 401 (M) and Aiyappan Piliai v. Kesavaru, AIR 1953 Trav-Co 545 (FB) (N).

19. In ILR 17 All 172 (I) it was held that an order that the suit shall abate was not appealable as it did not amount to a decree. With respect I do not subscribe to this view.

20. In the Full Bench case of AIR 1926 All 217 (J), what was decided was that abatement was automatic and that no formal order of the Court was necessary to the effect that the suit had abated. For the reasons discussed by me above, I am of the opinion that at one stage or the other for the disposal of the whole suit or the appeal it is incumbent and necessary to pais a final order disposing of the suit or the appeal on the ground of abatement and such order is a decree, though the fact of abatement is automatic.

21. Similar is the view expressed in the two Lahore cases, and I respectfully agree with the same view to the extent only that, on the expiry of 90 days from the date of death of the person concerned, the abatement is automatic, but that does not by itself finally dispose of the suit or the appeal concerned.

22. In the Nagpur and the Bombay cases also, it was held that the process of abatement is automatic and no express order of the Court is necessary for that purpose.

23. In the Full Bench case of AIR 1953 Trav-Co 545 (N), it was held that an abatement by itself not followed by any decree or order of the appellate Court cannot be construed to be the final decree or order of that Court. I would like to quote here a passage from the judgment of Sankaran J., which reads as follows:

“Where there is dispute about the date of the death of the party and also about the fact of the abatement the matter may have to be judicially enquired into and the result of such inquiry may alone solve the question whether the appeal has to be disposed of as having abated or not. Similarly, the question whether the abatement of the appeal as against one of the parties to it has the effect of the abatement of the appeal against all, may call for a decision of the Court. All such enquiries and decisions have necessarily to be undertaken by the Court before finally disposing of the appeal. Thus, it will not be correct to say that in the case of abatement of an appeal it is unnecessary or superfluous for the appellate Court to pass final orders disposing of the appeal. On the other hand, it appears that even in cases of abatement an order of the Court which has entertained the appeal is necessary to have it removed from the file. Such a final order will undoubtedly come under cl. (2) of column 3 of Article 182. The Court called upon to execute the decree can go into the question of limitation only on the basis of such an order and its date.”

24. My conclusions, therefore, are that the process of abatement is automatic and it does not operate as a decree. What operates as a decree is the final order abating the suit or the appeal, by which order the suit or the appeal is finally disposed of. I would also give at this place an illustration. A, B and C file a suit. A dies and no substitution having been made, the suit abates so far as A is concerned, B and C contend before the Court that their rights are separable from A and their suit should proceed. The suit proceeds and ultimately a final judgment is passed in the suit. The result of this final judgment would be disposing of the suit so far as A is concerned on the ground of abatement and disposing it of otherwise so far as B and C are concerned. The legal representatives of A will have a right of appeal against the said final judgment, if they so choose, as a decree disposing of the suit of A on the ground of abatement. If no appeal is filed, the abatement of the suit is a bar under O. 22, R. 9 to a subsequent suit by the legal representatives of A based upon the same cause of action. I do not think, prior to the final disposal of the suit, the legal representatives of A had any right of appeal against the order of abatement which might be recorded in the suit itself at a prior stage. Similar will be the case in appeal and, therefore, in appeal the question thus arises, before finally disposing of the same, as to whether the Court would like to exercise its discretion under O. 41, R. 4 for giving relief to the surviving appellants by reversing or varying the decree in favour of the legal representatives of the deceased appellant. As soon as the appellant dies, the legal representatives become entitled to be brought on the record and prosecute the appeal (if the right survives to them) and the decree-holder gets a right to execute the decree against them. In that view of the matter, they become parties to the decree and the effect of their non-substitution in the appellate Court is that they are not before the appellate Court as parties to the appeal on record. It has been held in recent five Judges' Full Bench decision in Mt. Parwati Kuer v. Manna Lal Khetan, AIR 1956 Pat 414 (O):

“But a party who has been heard in appeal cannot object to a decree being passed in favour of a person merely because that person is not a party to the appeal and has not been heard.”

25. Though some of the Madras cases have taken the view that the order of abatement operates as a decree, yet it is interesting to note that the Madras High Court has uniformly held in the following cases that in the circumstances similar to the present case powers under O. 41, R. 4 of the CPC are available to the appellate Court to be exercised, if thought proper. The cases are Somasundaram Chettiar v. Vaithilinga Mudaliar, ILR 40 Mad 846 : AIR 1918 Mad 794 (2)) (P); Changamma Naidu v. Gaugulu Naidu, AIR 1925 Mad 235 (Q); (Kompalli-Chenchuramayya v. Dama Veukatasubhayya Chetty) AIR 1933 Mad 655 (R); Sakkarai Chettiar v. Chellappa Chettiar, AIR 1938 Mad 374 (S) and Artharama Rabu v. Arthapadhi, 25 Mad LJ 248 (T).

26. In Allahabad similar view has been taken in several cases, namely, Ram Sewak v. Lambar Pande, ILR 25 All 27 (U); Shahzad Singh v. Ram Ugrah Singh, AIR 1930 All 211 (2) (V); Abdul Rahman v. Girjesh Bahadur Pal, AIR 1938 All 235 (W); Thakur Prasad…(Defendant); v. Ram Khelawan…(Plaintiff)., AIR 1944 All 240 (X) and Mt. Krishna Dei v. Governor-General in Council, AIR 1950 All 1 (Y). But in the Full Bench case of Baijnath v. Ram Bharose, ILR (1953) 2 All 434 : (AIR 1953 All 565) (Z), a contrary view has been taken. No useful purpose would be served to discuss this case in detail here in this judgment, but I would only observe with respect that I do not subscribe to the view expressed in this case.

27. In Bombay the uniform view is in line with the Madras view. The Bombay cases are Chandarsang v. Khimabhai, ILR 22 Bom 718 (Z1): Chintaman Nilkant v. Gangabai, ILR 27 Bom 284 (Z2) Shripad Balvant v. Nagu Kushaba, AIR 1943 Bom 301 (Z3) and Dhondo Khando v. Waman Balwant, AIR 1945 Bom 126 (Z4).

28. In Calcutta the earlier cases are in line with the Full Bench case of ILR 19 Pat 870 : (AIR 1940 Pat 346) (A) and those cases are Protap Chandra Chatterjee v. Durga Charan Ghose, 9 Cal WN 1061 (Z5); Naimuddin Biswas v. Maniruddin Laskar, 32 Cal WN 299 : (AIR 1928 Cal 184) (Z6); Rai Harendra Nath v. Dwijendra Nath, 37 Cal WN 756 : (AIR 1933 Cal 787) (Z7) and Hari Charan Moulik v. Kalipada Chakravarti, ILR 56 Cal 622 : (AIR 1929 Cal 519) (Z8). But the latter decisions including one an earlier one also, namely, Upendra Nath Ghosh v. Bhusan Sahana, AIR 1926 Cal 462 (Z9) have taken a contrary view. The cases are Satulal Bhattacharjya v. Asiruddin Shaikh, ILR 61 Cal 879 : (AIR 1934 Cal 703) (Z10); Karimannassa Bibi v. Juran Mondal, 59 Cal LJ 318 (Z11); Nibaran Chandra Ghose v. Pratap Chandra Chaudhuri, 44 Cal WN 141 (Z12); Saran Chandra Narayan Chaudhury v. Fezuraam Nath, 46 Cal WN 281 (Z13) and Halima Khatun v. Sashi Kumar, AIR 1947 Cal 453 (Z14). The last Calcutta case on the point seems to be a single Judge decision reported in Mritunjoy Das v. Sm. Sabitrimoni Dasi, AIR 1950 Cal 59 (Z15), which again seems to have taken the earlier view. The view expressed in ILR 19 Pat 870 : (AIR 1940 Pat 346) (FB) (A) has also been adopted in Malobi v. Gaus Mohamad, AIR 1949 Nag 91 (Z16); Lilawati Bai v. Gangadhar, AIR 1953 Nag 12 (Z17); Aravinda Sarma v. Payodhar Barua, AIR 1950 Assam 53 (Z18), Joygnoram v. Dayaram Das, AIR 1950 Assam 54 (Z19); Sonahar Ali v. Mukbul Ali, AIR 1956 Assam 164 (Z20); Nanak v. Ahmad Ali, AIR 1946 Lah 399 (FB) (Z21); Pyarelal v. Modi Sikharchand, AIR 1957 Madh Pra 89 (Z22); Balakrishna Patro v. Balu Subudhi, AIR 1949 Pat 184 (Z23); Ramdhari v. Rambharosa*, ILR 32 Pat 1138 (Z24) and Sarju Singh v. Ramsaroopsing, AIR 1955 Pat 155 (Z25).

29. The cases in which a doubt was expressed in this High Court about the correctness of the decision in ILR 19 Pat 870 : (AIR 1940 Pat 346) (FB) (A) are Radhamohan v. Shreekrishna, ILR 27 Pat 242 : (AIR 1948 Pat 460) (Z26); Kali v. Tulshi*, AIR 1954 Pat 49 (Z27) and in the order of reference of the Full Bench case of Mt. Parwati Kuer v. Manna Lal Khetan (S) AIR 1956 Pat 414 (Z28) in which the point did not ultimately fall to be decided as it was a case of striking of the name of one of the appellants for some technical defect and was not the case of death.

30. I would like to observe in this case that, so far as the Patna High Court is concerned, it would be advisable to maintain the authority of long established decided cases as many transactions are adjusted and rights determined on the basis of this Patna authority in the State of Bihar. As held in Guardians of the Poor of West Ham Union v. Guardians of the Poor of Edmonton Union, 1908 AC 1 (Z29):

“Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined.”

31. I am also conscious of the observation in that case.

“But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them, I consider it is the duty of this House to overrule them, if it has not lost the right to do so by itself expressly affirming them.”

32. In this case I have shown how both the currents have found favour throughout India and on more than one occasions in the same High Court. In this state of affairs, no useful purpose would be served by referring this question to a still larger Bench so far as this Court is concerned. Even assuming that the larger Bench departs from the decision of the Full Bench in ILR 19 Pat 870 : (AIR 1940 Pat 346) (A), the risk would be there of a contrary view from the Supreme Court. In such a situation, I consider it of utmost importance to leave the law where it stands so far as this Court is concerned, and, in that view of the matter, I hold following the Full Bench decision of ILR 19 Pat 870 : (AIR 1940 Pat 346) (A) that we have no powers to vary or reverse the decree in favour of the legal representatives of the deceased appellant, Ambika Prasad Singh. The result, therefore is that the whole appeal has become incompetent and has got to be dismissed on this ground alone.

33. It is not necessary to decide whether, in the facts and circumstances of this case, if it were open to us to exercise our powers under O. 41, R. 4 of the CPC, we should have or could have exercised our discretion or not. I may, however, only observe that the first point of Mr. Lal Narayan Sinha that the powers under O. 41, R. 4 of the CPC, cannot and should not be exercised because of the deliberate, false statements made by the appellants in the substitution matter does not appeal to me. His second objection, however, that the decree in this case is a double-edged decree and setting aside the decree against the remaining appellants as well as the legal representatives of Ambika Prasad Singh would be varying the decree in favour of the latter seems to have force. I express no final opinion on these matters as it is not necessary to do so here.

34. Next remains only one point to be disposed of, and that is this. We called for the records and the final judgment of the first appeal of the Full Bench case of ILR 19 Pat 870 : (AIR 1940 Pat 346) (A) and we found that in that case the Court had exercised its inherent power or powers under O. 41, R. 33 of the CPC, in giving relief to the appellants in that case. With very great respect, I fail to understand how, if the statement of the deceased appellant is a decree, inherent power or powers under O. 41, R. 33 of the CPC, can be exercised to touch the finality of such a decree of the appellate Court. Anyway, in this particular case I would refuse to exercise such powers, even if any, to vary the decree in favour of the legal representatives by bringing them on record under my inherent powers.

35. The result, therefore, is that the whole appeal fails as being incompetent because of the abatement of the appeal of the deceased appellant, Ambika Prasad Singh. The appeal, therefore, is dismissed but in the acts and Circumstances of this case I would make no order as to costs.

36. C.P Sinha, J.:— I entirely concur in the order proposed.

D.H.Z

37. Appeal dismissed.