Kulwant Sahay, J.:— (after stating the facts set out above proceeded as follows:) In the first place, it is contended that Narain Singh, a member of the joint family of the defendant second party was already on the record and no substitution was necessary, and, secondly, it is contended that even if substitution was necessary the fact that one of the heirs was on the record will save the appeal from abatement; and that the only question which arose was as to the want of all the necessary parties on the record. In my opinion the contention of the learned vakil for the appellants is not sound. Under Order XXII, rule 4, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, the Court on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. In the present case the right to sue did not survive against the surviving defendant Narain Singh alone and, therefore, it was necessary for the appellants to make an application for the legal representatives of the deceased respondents being substituted in their place. Sub-rule (3) of rule 4, Civil Procedure Code, provides that where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant. Therefore, on account of the appellants' failure to make an application for substitution of the heirs of the deceased respondents within the time limited by law the present appeal did abate as against the deceased respondents. The question was considered by this Court in Lilo Sonar v. Jhagru Sahu*, where it was held that the fact that one of the legal representatives of a deceased respondent is already on the record, but not as such, does not relieve the appellant from the duty of applying within time for the substitution of the legal representatives of the deceased. It was pointed out in that case that the fact that one of the legal representatives was already on the record did not relieve the appellant from making an application for substitution in terms of rule 4 of Order XXII. In Daroga Singh v. Raghunandan Singh, it was held that where one of the plaintiffs-respondents died leaving two sons who were all members of a joint family, and the appellants failed to bring them on the record, the whole appeal abated. In that case one of the members of the joint family Jagdeo Singh, who was a respondent in the appeal, died on the 28th of July, 1923 and his father Raghunandan Singh, who was apparently the karta of the family, was alive and a party to the suit. Jagdeo Singh died leaving two sons who were not substituted in his place and it was held that as no steps were taken to bring the sons of Jagdeo on the record the appeal had abated notwithstanding the fact that his father Raghunandan was already on the record. These two cases are clear authority for holding that the fact of Narain Singh being on the record did not prevent the abatement of the appeal when admittedly the other two respondents died leaving other members of the family as their legal representatives, and those members were not brought on the record.
Reliance was placed on behalf of the appellants upon the observations made by this Court in Shib Dutta Singh v. Sheikh Karim Bakhsh*. That case is clearly distinguishable from the present case. In that case an application had been made for substitution, but only two of the heirs of the deceased were substituted while other heirs were left out, and it was held that when there was an application for substitution of some of the legal representatives, that application saved the appeal from abatement. In the present case no application was made for substitution within the time limited by law.
Reliance was also placed on the decision of the Privy Council in Sheo Shankar Ram v. Jadu Koeri, for the proposition that the other members of the family were properly and effectively represented in the suit by the managing member of the family. That was, however, a different case. There a suit was instituted by some of the members of the joint family for redemption of a mortgage after a decree for foreclosure had been made in the presence of the managing member of the joint Hindu family, and it was held that all the members were effectively represented by the managing member. It was not a case of abatement; while we have direct authority of this Court in Daroga Singh v. Raghunandan Singh, to the effect that even if the managing member of he family is a party, the suit does abate for want of substitution if other members are not brought on the record on the death of some of the members of the family who are on the record.
The observation made by this Court in the order of 10th May, 1927, to the effect that no substitution would be necessary if Narain Singh was a member of the joint family was evideatly made on the supposition that Narain Singh was the sole surviving member of the family. It was not represented to the Court that there were other surviving members of the family and the appellants can derive no benefit from the said observation.
It is clear, therefore, that the appeal has abated as against the respondents 5 and 6, and that having regard to the nature of the suit the appeal has also abated as against Narain Singh the defendant no. 7. The defendants 5, 6 and 7 were the subsequent purchasers of the property and the effect of the abatement as against these defendants is that the plaintiffs are not entitled to prosecute the suit for specific performance of the contract. Having regard to the counter affidavit filed by the respondent, no ground has been made out for setting aside the abatement.
It is, however, contended that the appellants are, in any event, entitled to a decree for damages and for refund of the earnest money paid by them to the defendant no. 1. The defendant no. 1 has come to terms with the appellants and has agreed to a decree being passed against him for a sum of Rs. 600 advanced by the plaintiffs as earnest money and for Rs. 50 the costs paid by the appellants for the guardian-ad-litem of the minor respondents 2-4 and for proportionate costs on the sum of Rs. 600. Therefore by consent of parties, a decree will be made in favour of the appellants for Rs. 650 with proportionate costs on Rs. 600 with future interest thereon at 6 per cent, per annum. This decree by consent will be against the defendant no. 1 alone. As regards the respondents 2-4 the appeal must be dismissed, and as regards the respondents 5-7 it is declared that the appeal has abated.
Das, J.:— I agree.
Appeal dismissed.
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