Radhamohan v. Shreekrishna

Meredith, J.:— This second appeal and the application in revision are by the plaintiff in a money suit. The claim was for Rs. 1,692-3-9, and the learned Munsif gave a joint decree against the defendants, five in number. In first appeal the learned Subordinate Judge held that the claim was entirely false, and dismissed the suit.

It is now contended that the appellate decision was incompetent and without jurisdiction in the following circumstances. During the pendency of the appeal on the 16th of August, 1944, defendant no. 2 died. On the 16th of September, before the, period of limitation for an application for substitution had expired, the remaining appellants filed an application saying that substitution was not necessary as the sole heir was already on the record (this was incorrect, there were also other heirs) and asked instead that the name of the deceased defendant no. 2 be expunged from the category of appellants. This was done.

Later on the respondents filed an application Asserting that the appeal had abated as against defendant no. 2, and consequently the whole appeal abated is the decree was joint. The Court held that no question of abatement arose in the matter, and that under the provisions of Order 41, rule 4, Civil Procedure Code, it was open to any of the defendants to Appeal and get the whole decree set aside, if successful. He then proceeded to dispose of the appeal in the manner already indicated.

Mr. B.N Rai for the plaintiff relies upon the Full Bench case of Ramphal Sahu v. Satdeo Jha for the proposition that Order 41, rule 4 is not applicable to a case like the present, because it cannot override or create an exception to Order 22, rules 3 and 11. The question referred to the Full Bench in that case was, however, “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 Order 41, rule 4, Civil Procedure Code, if all the plaintiffs or defendants appealed 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'?” This question was answered in the negative. Therefore, what was decided was that Order 41, rule 4 could not be used to override an abatement. It is no authority at all with regard to the position where there has not been an abatement, and any observations made are obiter dicta. The ratio decidendi was that the abatement was in substance a decree against the representatives of the deceased appellant, and after that to give a decision in favour of the other appellants would lead to inconsistent decrees, an impossible situation in a joint decree. Thus at page 887 of the judgment we find “The order of abatement is virtually a decree, and so long as its stands must be considered to have determined the rights between the parties”. This proposition may or may not be correct, but, in my judgment, it does not touch the present case. As I see it, there was no abatement in the present case, because the defendant no. 2 had been expunged from the category of appellants before any question of abatement arose, or any abatement could have taken place. The abatement takes place on the expiry of the period of limitation for substitution. Before that event the name of the defendant no. 2 had been expunged. There was no longer any appeal by him. How could his appeal abate at a time when there was no appeal by him before the Court? Once the name was expunged, the appeal became simply an appeal under Order 41, rule 4 by the remaining appellants, and the case was not one of abatement at all.

Mr. B.N Rai, however, makes two further contentions. He says, first, that to apply Order 41, rule 4 or Order 41, rule 33 those who have not appealed must be made respondents. All parties to the litigation must be before the Court. Secondly, Order 41, rules 4 and 33 cannot be applied in the case of a dead person because there cannot be a decree against a dead person.

I will deal with these points in turn, but I may say at once that I consider both contentions unsound, and, in my opinion, the Court has got ample power under Order 41, rule 4, and Order 41, rule 33 to give relief and do justice in a case like the present.

Mr. B.N Rai relies first on certain observations in the Full Bench case already referred to. Thus we find in the judgment (at page 890) “To hold that Order 41, rule 4, Civil Procedure Code, 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 the record”. As I have already indicated, these observations are obiter because the question before the Court was merely as to the position where there had been an abatement and an order refusing to set it aside. With respect, I think these observations take too narrow a view of the scope of rules 4 and 33.

Mr. B.N Rai relies upon three cases for his proposition that to apply Order 41, rule 4, all the plaintiffs and the defendants must be on the record either as appellants or as respondents. The first is Balaram Pal v. Kanysha Majhi. That, however was a case where there had been an abatement. Ambika Prasad v. Jhinak Singh purports to follow 53 Indian Cases, and applies it to a case where one of the plaintiffs dies who has never joined in the appeal. In such circumstances the decree was held a nullity as against a deceased person. That was not laid down in 53 Indian Cases. The third case, Nanak v. Ahmad Ali was also a case of abatement, though it is true that there was an observation that to apply Order 41, rule 4, all must be impleaded. It is not an authority on that point.

I will make two quotations from Chitaley and Annaji Rao's annotated edition of the Civil Procedure Code, 4th edition, volume 3, because those learned commentators have, in my opinion, correctly summed up the position in language which cannot be bettered. At page 3009, with reference to Order 41, rule 4, they say: “There is a conflict of opinions as to whether this rule applies to cases where one of the plaintiffs or defendants appeals without impleading the other plaintiffs or defendants as parties to the appeal. The High Courts of Bombay, Calcutta and Madras and the Chief Court of Oudh hold that it does. But the Lahore High Court and the Judicial Commissioner's Court of Peshawar hold that it does not. Opinion of the High Court of Allahabad is conflicting, some cases holding that it does and some that it does not. It is submitted that the former view is correct.”

Then, with regard to Order 41, rule 33, at page 3165 they say: “The appellate Court can exercise its power under this rule in favour of parties to the suit who were not impleaded as parties to the appeal. A contrary view has, however, been taken in the under-mentioned cases. It is submitted that this view is not correct as it is inconsistent with the express provisions of the rule which uses the words ‘respondents or parties’.” That is just the point which appeals to me. In Order 41, rule 33 the word “respondents” is used. If it was intended to confine the application of the rule to parties who had been impleaded either as appellants or as respondents, that would have been enough, and the addition of the words “or parties” would have been entirely-redundant.

There is a considerable volume of authority in support of the view I take. Thus in Gopesh Chandra Aditya v. Benode Lal Das, where it was contended that the Municipal Board not being made a party to the appeal, it was incompetent, the Court held that the defence of the Municipal Board and the appellant being the same, and the decree having proceeded upon a common ground, the appellant had accordingly by himself a right to prefer the appeal.

In Fazal Rahman v. Abdul Rashid it was held that though the discretionary power under rules 4 and 33 should be applied cautiously, it can in suitable cases be applied in favour of persons not parties to the appeal.

Gurunath Khandappagouda Patil v. Venktesh was a case where a decree was given with costs against all the defendants. This decree was executed for costs against defendant no. 3, and a sum was recovered from him. The defendants 1 and 2 appealed to the High Court, but failed, and then appealed to the Privy Council where they succeeded. The entire suit was dismissed with costs throughout. The defendant no. 3 had not been made party to these appeals. Subsequently, relying upon the decision, the defendant no. 3 applied for restitution under section 144, Civil Procedure Code, and this was allowed.

In Kamalakanta Deb Nath v. Tamijuddin we find: “Reading rules 4 and 33 of Order 41, Civil Procedure Code, together, there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents, if the decree appealed from proceeds on a ground common to all of them and that the appellate Court may thereupon exercise a power of varying the decree in favour of the non-appealing defendants although they have not been made parties to the appeal.” To exactly the same effect is Duli v. Badri Prasad.

In Girija Prasanna Deb Gupta v. N.M Khan it was laid down that Order 41, rule 33 authorises the appellate Court to pass any decree which ought to have been passed by the trial Court. The word “parties” in Order 41, rule 33, is wide enough to include persons who were parties to the suit in the trial Court, but were not parties to the appeal.

In Deonarain Sahu v. Ganesh Ram there is an observation by a Bench of this Court which, though no doubt obiter, is in point. It is: “Order 41, rule 33 …….’…… places the Court in a position of doing justice between the parties, that is to say, if the effect of the decision at which the Court arrives is to affect the rights of a person who is not a party to the appeal, yet relief may be granted to that person so long as that person was a party to the action in the first instance.”

There is nothing whatever in the terms of rule 4 to suggest that the persons, who did not appeal, must be impleaded as respondents, and were it necessary, one would expect words to that effect in the rule. In rule 33 there is, as I have already indicated, a direct indication to the contrary effect. Neither rule offends the principle that an order cannot be passed to the prejudice of a person in his absence, because the terms of each rule carefully and expressly limit its application to orders in favour of the absent person so that no question of any objection by him being shut out can arise.

There remains Mr. B.N Rai's last contention; that a dead person is not a party at all, and, therefore, there can be no decree against him or in his favour. With the greatest respect to the observations in I.L.R 19 Patna, 870, I think no question of any decree against or in favour of a dead person ever arises. The proposition “there cannot be a decree against a dead person” seems to me to rest on a confusion of thought. What we have in such a case, is a decree against the legal representatives of such a person, who have not been brought on the record. But the existence of legal representatives of a dead person does not depend upon their being substituted in the record or impleaded. The well-known expression “there cannot be a decree against a dead person”, if at all correct, really has its justification in the wider principle “there cannot be a decree against persons who have not been made parties”. The same considerations are not applicable where the decree is in favour of such persons. Once it is conceded that it is not necessary to implead the non-appealing party or his representatives as respondents, then, so far as I can see, it makes absolutely no difference whether there has been a death or not. For if the legal representatives have not replaced the deceased in the little world of the Court they have done so in the world outside, and if a decree can be passed in favour of a man who has not been brought on the record, I see no reason why that cannot be done in favour of his legal representatives when he dies, without bringing them upon the record, and it ought to be done where refusal to do so will involve a great injustice to persons who have appealed, as in the present case.

There, is another aspect of the matter. The Patna Full Bench decision itself proceeds upon the theory that the abatement is virtually a decree, a decree which has ensued upon failure to prosecute the appeal. Against whom is this decree? The Full Bench itself says it cannot be against a dead person. Therefore it is not against the deceased appellant. It can then only be a decree against his representatives, and the theory is that there being a final decree against his representatives, there cannot be any inconsistent decree in favour of the appellants. These representatives, however, have incurred the decree against them without ever being substituted or ever being impleaded. If such a thing can happen, what objection can there be to the decree in favour of such persons?

That the decree upon abatement is a decree against the representatives of the deceased and not against the remaining appellants becomes clear from an analysis of the provisions of Order 22, rule 3. We get it from Order 22, rule 11 that we should substitute the word “appellant” for the word “plaintiff”, the word “respondent” for the word “defendant”, and the word “appeal” for the word “suit”. Let us do so and see how rule 3 reads. It becomes:

“3. (1) Where one of two or more appellants dies and the right to appeal does not survive to the surviving appellant or appellants alone ……………………… The Court on an application made in that behalf shall cause the legal representatives of the deceased appellant to be made a party, and shall proceed with the appeal; (2) where, within the time limited by law, no application is made under sub-rule (1), the appeal shall abate so far as the deceased appellant is concerned, and on the application of the respondent the Court may award to him the costs which he may have incurred in defending the appeal, to be recovered from the estate of the deceased appellant.”

Note that under this provision the decree for costs is clearly to be against the legal representatives of the deceased appellant, and not against the other appellants.

In my judgment there was nothing in law to prevent the Court from hearing the appeal of the remaining defendants in the present case and giving relief either under Order 41, rule 4 or under Order 41, rule 33, or both. The decree being a joint decree, the only relief which could be given was to set it aside as a whole.

The application in revision fails. As for the second appeal, it is completely without merit, the, matter being concluded by findings of fact.

I would accordingly dismiss both with costs. It is unnecessary to assess any separate hearing fee in the revision.

Before I conclude I would like to express my personal opinion that Ramphal Sahu v. Satdeo Jha may upon a proper occasion need reconsideration by a larger Bench. Previous to this decision the current of authority was fairly evenly divided. It is further noteworthy that when the answer of the Full Bench to the question propounded came back to the Division Bench hearing the First Appeal in question, that Bench was so struck by the manifest injustice which that answer involved that it resorted to the inherent power of the Court to override the provisions of the statute as interpreted by the Full Bench, and to give relief to the appellants. I do not myself believe in any such inherent power of the Court to override statutory provisions. But in my opinion there is no question of overriding them.

The analysis of Order 22, rule 3, which I have made above, clearly suggests that the default in regarded as being on the part of the representatives of the deceased and not on that of the remaining appellants. If the abatement was regarded as owing to the default of the remaining appellants in not applying for substitution, one would expect the law to provide for the decree for costs being against them. But, as I have shown, it provides only for a decree for costs against the representatives—the persons really in default. It is true that it is the duty of the appellants to see that the appeal is properly constituted, and, therefore, if it was necessary to implead the representatives either as appellants or as respondents, there would indeed be a default on their part. I have held, however, that the law does not necessitate impleading the representatives to make the appeal properly constituted. The appeal is still properly constituted without them, having regard to the provisions of Order 41, rule 4, and there is no duty upon the remaining appellants to apply for substitution, if they like to proceed with the appeal as an appeal under Order 41, rule 4. I see no reason why, if they do so and succeed upon the merits, they should not secure a reversal of the whole decree including the decree as against the deceased. It is true that as regards the representatives the appeal has abated, but I think an abatement must be distinguished from a decree upon the merits. An abatement merely means that the right of appeal on the part of the person concerned is gone, and that the decree of the trial Court stands confirmed in that respect. It is different from an appellate decree upon the merits. The appellate Court has the power to set aside an-abatement, but so far EL decree upon the merits is concerned it becomes functus officio. If interpreted in the way I suggest, there is no question of any conflict between Order 22, rule 3, and. Order 41, rule 4, and no question of either overriding the other.

Agarwala, C.J:— I agree that the appeal and application should be dismissed for the reasons stated by Meredith, J.

K.D

Application and Appeal dismissed.