Bombay High Court
Shri Nathu Ananda Ghorpade vs Smt. Yashoda Jagannath Ghorpade on 21 October, 2011
Bench: G. S. Godbole
1 sa154.10
ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 154 OF 2010
WITH
CIVIL APPLICATION NO. 430 OF 2010
AND
CIVIL APPLICATION NO. 431 OF 2010
1. Shri Nathu Ananda Ghorpade, )
Age about 65 years, Occ. Agriculturist. )
)
2. Shri Shivaji Anant Ghorpade,
ig )
Age about 60 years, Occ. Agriculturist. )
)
3. Tanaji @ Appa Anant Ghorpade since )
deceased through his heirs )
3A.Smt. Ranjana Tanaji @ Appa Anant )
Ghorpade, Age about 55 yrs. Occ. Household. )
)
3B. Shri Rejendra Tanaji @ Appa Anant )
Ghorpade, Age about 35 years, )
Occ. Agriculturist, )
)
3C. Shri Sanjay Tanaji @ Appa Anant )
Ghorpade, Age about 32 years, )
Occ. Service. )
Nos. 1 to 3C All R/o Atit, Taluka & )
District Satara. )
)
4. Smt. Putalabai Shankar Kadam )
Age about 52 years, Occ. Household, )
R/o. Masur, Tal. Karad, District Satara. )
)
5. Smt. Savitrabai Ramchandra Khamkar )
Age about 55 years, Occ. Agriculture, )
R/o Awarde, Tal. Patan, Dist. Satara. )
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)
6. Smt. Balutai Gopala Khamkar, )
Age about 55 years, Occ. Household, )
R/o Avarde, Tal. Patan, Dist. Satara. ) ....Appellants.
Vs.
1. Smt. Yashoda Jagannath Ghorpade )
Age about 82 years, Occ. Household, )
R/o Mattyapur, Tal & District Satara. )
)
2. Smt. Godabai @ Shashikala Uttam Dhane, )
Age about 57 years, Occ. Household. )
R/o Padali, Tal & District Satara. )
)
3. Eknath Navalu Ghorpade, since deceased
ig )
through heirs. )
3A. Shri Prakash Eknath Ghorpade, )
Age about 56 years, Occ. Agriculturist, )
R/o. Mattyapur, Post Mazgaon, )
Taluka & District Satara. )
At present R/at Hanuman Tekdi, )
Kajupada, Shramik Vasahat Chawl No. 3, )
Room No. 12, Borivali (E), Mumbai. )
)
3B. Shri Anandrao Eknath Ghorpade )
Age about 57 years, Occ. Agriculturist. )
)
3C. Smt. Subhadra Eknath Ghorpade )
Age about 76 years, Occ. Household, )
Nos. 3B & 3C r/o Mattyaput, )
Post Mazgaon, Taluka & Dist. Satara. ) ....Respondents
Mr. Dilip Bodake, Advocate for Appellants.
Mr. V.B. Ghorpade, Advocate for Respondent Nos. 1 and 2.
Mr. Uday Warunjikar, Advocate for Respondent Nos. 3 and 4.
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CORAM:- GIRISH GODBOLE, J
DATED:- OCTOBER 21, 2011
P.C.
1. On 15/9/2011 I had passed following order :
"1. Heard Mr. Dilip Bodke, Advocate for the
Appellants/Applicants and Mr. Uday Warunjikar, Advocate for
Respondent Nos. 3 A to 3C. In the peculiar facts of this case,
which will be narrated by me hereinafter without issuing formal
rule on this Civil Application, this Civil Application and the Second
Appeal are proposed to be disposed of by framing questions of law
in the Second Appeal. It is therefore, necessary to narrate a few
facts.
2. Yashoda Jagannath Ghorpade and Godabai @ Shashikala
Uttam Dhane who are Respondent Nos. 1 and 2 in the Second
Appeal had filed R.C.Suit No. 34 of 1988 in the Court of Civil
Judge, Sr. Division, Satara for specific performance of an
Agreement of re-conveyance, possession and mesne profits. Tanaji
Ghorpade was impleaded as Defendant No. 3. Eknath Ghorpade
was impleaded as Defendant No. 7. Said Eknath died during the
pendency of the Suit and hence Defendant Nos. 7-1 to 7-3 who are
Respondent Nos. 3(a) to 3(c) in this Second Appeal were brought on
record as heirs of the Defendant No. 7 Eknath. They filed purshis
Exh. 28 and supported the original Plaintiffs.
3. By Judgment and Order dated 6/9/1994, Learned II Jt. CJJD,
Satara dismissed the Suit.
4. Aggrieved by this Decree of dismissal, original Plaintiffs
filed Regular Civil Appeal No. 470 of 1994 in the District Court at
Satara and in the said Appeal, the heirs of original Defendant No. 7
were impleaded as Respondent Nos. 7a to 7c. The said heirs
independently filed Regular Civil Appeal No. 510 of 1994 in the
District Court at Satara. Ordinarily, both the Appeals arising out
of the same Judgment and Decree ought to have been clubbed
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together, heard together and disposed off by a common Judgment.
However, that does not appear to have been done and Regular Civil
Appeal No. 470 of 1994 filed by the original Plaintiffs was heard
first. It appears that during the pendency of the said Appeal,
original Defendant No. 3 Tanaji who was Respondent No. 3 in Civil
Appeal No. 470 of 1994 died on 15/6/1998 but his heirs were not
brought on record. Consequently the said Appeal abated as against
the said Respondent No.3 Tanaji. Nevertheless, hearing of the
Appeal proceeded and by Judgment and Order dated 24/9/2004, the
learned IInd Ad-hoc Additional District Judge, Satara dismissed
the said R.C. Appeal No. 470 of 1994 filed by the original Plaintiffs.
This Order was challenged by the original Plaintiffs by filing
Second Appeal No. 927 of 2005 in this Court and the learned Single
Judge (P.V. Kakade, J) dismissed the Second Appeal by Judgment
and Order dated 6/9/2005 at the stage of admission itself. The said
order reads thus :
"1. The appellants have preferred this appeal against the
judgment and order passed by the Addl. District Judge,
Satara, dismissing the appeal and confirming the judgment
and order passed by the Civil Judge, J.D., Satara,
dismissing the plaintiffs' suit for specific performance.
2. I have heard the learned counsel for the appellants.
Perused the record including the judgments of both the
Courts below.
3. The plaintiffs filed the suit for specific
performance of the contract which was executed
on 8.5.1956 in which the suit for specific performance came
to be filed on 11.1.1988 i.e. about 32 years after the
execution of the document. Both the Courts below have
come to the conclusion that the suit is barred by the law of
limitation. Without further elaboration, with regard to the
facts involved, it is evident position that the plaintiffs'
witness in his cross-examination has admitted that
deceased Eknath had gone to the house of defendants
with money and demanded them to reconvey the suit
land showing his readiness to repay the consideration
amount and at that time the defendants refused to
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reconvey the suit property in their favour on the basis of
the agreement of 1956 Exh.61 and, therefore,
though the terms of agreement showed that there was
no specific time limit fixed for the performance of
contract, the suit is clearly hit by the provision of Art.54
of the Limitation Act and, as such the suit should have been
filed within three years from the date of refusal of
specific performance of the contract by the other side. On
this ground alone, the appeal has to be dismissed
without going into any other factual aspects especially
when there is no substantial question of law involved in this
appeal.
In the result, the appeal stands dismissed with no order as to
costs.
Consequently, the Civil Application No. 1467 of 2005 also
stands dismissed with no order as to costs. "
.....
Apparently, since the Second Appeal was dismissed without issuing
notice to the Respondents, the other parties may not be aware about
the filing of the said Second Appeal and its dismissal.
5. In due course Regular Civil Appeal No. 510 of 1994 filed by
the Respondent Nos. 3a to 3 c being the Original Defendant Nos.
7-1 to 7-3 was placed for hearing before the District Court at
Satara. The original Plaintiffs Yashoda and Godabai were
impleaded as Respondent Nos. 7 and 8 in this R.C. Appeal No. 510
of 1994. Even in this Appeal, the heirs of the Tanaji who was
impleaded as Respondent No.3 and who had died on 15/6/1998
during the pendency of this Appeal had not been brought on record
and consequently, even this Appeal has abated as against Tanaji.
Record of the present Second Appeal containing Judgment in the
R.C. Appeal No. 510 of 1994 shows that the original Plaintiffs
Yashoda and Godabai who were impleaded as Respondent Nos. 7
and 8 were represented by Advocate Mr. D.S. Patil, who was heard.
6. It is necessary to note that during the pendency of the R.C.
Appeal No. 470 of 1994, the Advocate for the Appellants therein,
6 sa154.10
(original Plaintiffs) had filed a purshis indicating that that Appeal
was required to be heard with Civil Appeal No. 510 of 1994.
However, as stated above, the two Appeals were not clubbed
together.
7. When Regular Civil Appeal No. 510 of 1994 filed by
Respondent Nos. 3 A to 3 C herein was pending, the Respondents
therein filed an Application below Exh. 26 on 5/11/2009 for
production of certain documents and the learned District Judge-1
passed the following Order :
"Allowed COA."
8. The documents were accordingly filed with list Exh. 27 and
the said list shows that the certified copy of the Judgment and
Order dated 24/9/2004 passed in R.C. Appeal No. 470 of 1994 was
filed on record and a photo copy of the Decree in Civil Appeal No.
470 of 1994 was also filed on record. The learned District Judge-1
made an endorsement on the said list Exh. 27 and so the documents
were allowed to be filed on record.
9. Thereafter, by impugned Judgment and Order dated 27th
November, 2009, the learned District Judge-1 Satara allowed R.C.
Appeal No. 510 of 1994, and the following order was passed :
"ORDER
The Appeal is hereby allowed with costs.
The Judgment and Decree passed by the 2nd Jt. Civil
Judge, Jr. Dn. Satara dt. 6.9.94 in Reg. Civil Suit No. 34/98 is
hereby set aside.
On depositing the amount of Rs.1200/- by Plaintiff and
Defendant No. 7 and 8 and the Defendant Nos. 1 to 6 are
hereby directed to reconvey the suit land in favour of the
Plaintiff and Defendant No. 7 and 8 in default, the Plaintiff
and Defendant No. 7 and 8 are at liberty to execute the
reconveyance through Court.
Decree be drawn up accordingly."
This is the Order against which the present Second Appeal is filed
by the Original Defendant Nos. 1, 2, 4 to 6 and the widow and 2
7 sa154.10
sons of original Defendant No. 3 Tanaji.
10. It is in this context that the Civil Application No. 430 of 2010
has been filed by the Appellant seeking following reliefs :
(a) This Hon'ble Court be pleased to allow the applicants
to bring on record as applicant Nos. 3A to 3C as heirs and
legal representatives of deceased Applicant No. 3 namely
Tanaji @ Appa Anant Ghorpade and accordingly allow to
amend the cause title of Second Appeal and Civil
Applications;
(b) This Hon'ble Court be pleased to condone the delay in
bringing the heirs and legal representatives of deceased
Applicant No. 3 namely Tanaji @ Appa Anant Ghorpade;
(c) This Hon'ble Court be pleased to set aside the
abatement in respect of deceased applicant No. 3 namely
Tanaji @ Appa Anant Ghorpade;
(d) This Hon'ble Court be pleased to condone the delay in
setting aside the abatement in respect of the deceased
applicant No. 3 namely Tanaji @ Appa Anant Ghorpade;
(e) This Hon'ble Court be pleased to grant the leave in
favour of the applicants to allow them to file the present
Second Appeal thereby challenging the judgment and decree
dated 27.11.2009 passed by the District Judge-1, Satara in
Regular Civil Appeal No. 510 of 1994;
(f) To pass such other and further orders as this Hon'ble
Court may deem fit and proper in the facts and circumstances
of the present case."
11. Since the Appellant Nos. 3A to 3C were not parties to the
Appeal in the District Court, they have sought leave of the Court to
file the Second Appeal.
12. It is apparent from the impugned Judgment and Order dated
27th November, 2009 that though by filing Applications Exh. 26 and
list Exh. 27, the certified copy of the Judgment and Order dated
24/9/2004 in R.C.A. No. 470 of 1994 was placed on record of Civil
Appeal No. 510 of 1994, there is absolutely no consideration of this
aspect by the learned Judge who has passed the impugned
Judgment and Order. Apparently, the fact that the Original
8 sa154.10
Plaintiffs had filed Second Appeal No. 927 of 2005 in this Court
and the fact that the same has been dismissed on 6/9/2005 was also
not brought to the notice of the learned District Judge. In view of
these peculiar facts, I have deemed it fit to take up the Second
Appeal for final hearing. Hence Appeal is admitted. Mr. Ghorpade
waives service of notice for Respondent No.1 and 2 who are
original Plaintiffs. Mr. Warunjikar waives service of notice on
behalf of the Respondent Nos. 3a to 3c. The following questions of
law are framed :
(1) Whether on account of dismissal of R.C. Appeal No. 470 of
1994 which was filed by the original Plaintiffs in R.C. Suit
No. 34 of 1988; by Judgment and Order dated 24/9/2004,
the Decree of the Trial Court has merged in the Decree
passed in Civil Appeal No. 470 of 1994 and, hence, Civil
Appeal No. 510 of 1994 filed by the original Defendant No.
7-1 to 7-3/Respondent Nos. 3a to 3c herein was maintainable
?
(2) Whether on account of the fact that original Defendant No.3
Tanaji Ghorpade had died on 15/6/1998, during the
pendency of R.C. Appeal No. 470 of 1994 and R.C. Appeal
No. 510 of 1994 and considering the nature of reliefs claimed
in the Suit, on account of automatic abatement of the said
Appeals against the deceased Tanaji on the expiry of a period
of 90 days from 15/6/1998, both the Appeals had abated in
their entirety ?
(3) Whether on account of the fact that the Second Appeal No.
927 of 2005 was filed by the Original Plaintiffs who were
Appellants in R.C. Appeal No. 470 of 1994 and was
summarily dismissed by the learned Single Judge
(P.V.Kakade,J) on 6/9/2005, the Decree of the Trial Court
dismissing the Suit has merged in the said Judgment ?
(4) Whether the heirs of Original Defendant No. 7 had any locus
standi to file an independent appeal in the absence of any
counterclaim being filed or third party procedure being
adopted for seeking a decree for Specific Performance ?
13. Considering the entire controversy, the Appeal is fixed
after 2 weeks. Filing of private Paper Book and Decree Forms is
dispensed with. Printing is dispensed with. Appeal to be shown
9 sa154.10
as part hard on the daily board."
2. Accordingly, Mr. Bodake, Advocate for the Appellants and Mr.
Warunjikar, Advocate for Respondent Nos. 3A to 3C and Mr. Ghorpade,
Advocate for Respondent Nos. 1 and 2 advanced their respective
arguments. I had occasion to consider a more or less identical situation
in Second Appeal No. 488 of 2010. In that Judgment I have taken
following view :
6.
In Budh Ram & ors. v/s Bansi & & Ors AIR 2010 SCW
5071 , the Supreme Court has held thus :
12. Abatement takes place automatically by application of
law without any order of the court. Setting aside of abatement
can be sought once the suit stands abated. Abatement in fact
results in denial to hearing of the case on merits. Order XXII
Rule 1 CPC deals with the question of abatement on the death
of the plaintiff or of the defendant in a Civil Suit. Order XXII
Rule 2 relates to procedure where one of the several plaintiffs
or the defendants die and the right to sue survives. Order
XXII Rule 3 CPC deals with procedure in case of death of
one of the several plaintiffs or of the sole plaintiff. Order
XXII Rule 4 CPC, however, deals with procedure in case of
death of one of the several defendants or of the sole
defendants. Sub-clause (3) of Rule 4 makes it crystal clear
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.
13. Provisions of Order XXII Rule 4 (4) CPC, provide that
in case, the deceased defendant did not contest the suit and
1 AIR 2010 SCW 5071
10 sa154.10
did not file a counter affidavit, the substitution may not be
warranted. In the instant case, the High Court repelled the
submission regarding application of Order XXII Rule 4(4)
CPC on the ground that the said provision requires the
presentation of an application before the Court, before it
pronounces its judgment for seeking such a relief and once
such an application is allowed, in that case, it can only be
taken against the said defendant notwithstanding the death of
such defendant and such a decree shall have the same force
and effect as if it was pronounced before the death had taken
place. This view stands fortified by the Judgments of this
Court in Zahirul Islam Vs. Mohd. Usman & Ors. (2003) 1
SCC 4762; and T. Gnanavel Vs. T.S. Kanagaraj & Anr. AIR
2009 SC 23673. Thus, it has rightly been held by the High
Court that the provisions of Order XXII Rule 4(4) CPC were
not attracted in the facts of this case.
16. In Ramagya Prasad Gupta & Ors. Vs. Brahmadeo Prasad
Gupta & Anr. AIR 1972 SC 11814, this Court examined the
same issue in a case of dissolution of a partnership firm and
accounts and placed reliance upon two judgments referred to
immediately hereinabove and held as under:
"16. ........The courts will not proceed with an appeal (a) when
the success of the appeal may lead to the court's coming to a
decision which may be in conflict with the decision between
the appellant and the deceased respondent and, therefore, it
would lead to the court's passing a decree which will be
contradictory to the decree which had become final with
respect to the same subject matter between the appellant
and the deceased respondent; (b) when the appellant could
not have brought the action for the necessary relief against
those respondents alone who are still before the court and (c)
when the decree against the surviving respondents, if the
appeal succeeds, be ineffective that is to say it could not
be successfully executed. These three testes are not
cumulative tests. Even if one of them is satisfied, the court
2 (2003) 1 SCC 476
3 AIR 2009 SC 2367
4 AIR 1972 SC 1181
11 sa154.10
may dismiss the appeal". (Emphasis added)
17. In Sardar Amarjit Singh Kalra & Ors. Vs. Pramod Gupta
& Ors. AIR 2003 SC 25885, a Constitution Bench of this
Court, while dealing with the similar issue, has after
considering large number of judgments of this Court, reached
the following conclusion :-
"(a) In case of "Joint and indivisible decree", "Joint and
inseparable or inseparable decree", the abatement of
proceedings in relation to one or more of the appellant(s) or
respondent(s) on account of omission or lapse and failure to
bring on record his or their legal representatives in time
would prove fatal to the entire appeal and require to be
dismissed in toto as otherwise inconsistent or contradictory
decrees would result and proper reliefs could not be granted,
conflicting with the one which had already become final with
respect to the same subject matter vis-a-vis the others;
(b) the question as to whether the Court can deal with an
appeal after it abates against one or the other would depend
upon the facts of each case and no exhaustive statement or
analysis could be made about all such circumstances wherein
it would or would not be possible to proceed with the appeal,
despite abatement, partially;
(c) existence of a joint right as distinguished from tenancy
in common alone is not the criteria but the joint character of
the decree, dehors the relationship of the parties inter se and
the frame of the appeal, will take colour from the nature of
the decree challenged;
(d) where the dispute between two groups of parties centerd
around claims or based on grounds common relating to the
respective groups litigating as distinct groups or bodies - the
issue involved for consideration in such class of cases would
be one and indivisible; and
(e) when the issues involved in more than one appeals dealt
5 AIR 2003 SC 2588
12 sa154.10
with as group or batch of appeals, which are common and
identical in all such cases, abatement of one or the other of
the connected appeals due to the death of one or more of the
parties and failure to bring on record the legal representatives
of the deceased parties, would result in the abatement of all
appeals." (Emphasis added)
The Court further observed that any relief granted and the
decree ultimately passed, would become totally
unenforceable and mutually self-destructive and unworkable
vis-a-vis the other part, which had become final. The appeal
has to be declared abated in toto. It is the duty of the court to
preserve and protect the rights of the parties.
18. In Shahazada Bi & Ors. Vs. Halimabi AIR 2004 SC
39426, this Court considered the same issue and held as under
:-
"..................That, so far as the statute is concerned, the
appeal abates only qua the deceased respondent, but the
question whether the partial abatement leads to an
abatement of the appeal in its entirety depends upon general
principles. If the case is of such a nature that the
absence of the legal representative of the deceased
respondent prevents the Court from hearing the appeal as
against the other respondents, then the appeal abates in toto.
Otherwise, the abatement takes place only in respect of the
interest of the respondent who has died. The test often
adopted in such cases is whether in the event of the appeal
being allowed as against the remaining respondents
there would or would not be two contradictory decrees in
the same suit with respect to the same subject matter. The
Court cannot be called upon to make two inconsistent decrees
about the same property, and in order to avoid conflicting
decrees the Court has no alternative but to dismiss the appeal
as a whole. If, on the other hand, the success of the appeal
would not lead to conflicting decrees, then there is no valid
reason why the Court should not hear the appeal and
adjudicate upon the dispute between the parties." (Emphasis
added)
6 AIR 2004 SC 3942
13 sa154.10
7. This Judgment has followed the test laid down in the case of
Ramagya Prasad Gupta v/s. Murli Prasad in AIR 1972 SC 11817,
where 3 tests were laid down. The Constitution Bench Judgment of
the Supreme Court in Sardar Amarjit Singh Kalra (supra) also lays
down the said test.
8. Similar principles have been laid down in the following
Judgments of the Learned Single Judges & Division Bench of this
Court :
(1) Govind Laxman Jadhav v/s. Namdeo Balu Jadhav 2005(1)
Bom. C.R. 278 (A.S. Oka, J)8.
(2) Govind Vishwanath Bansode & Anr. v/s. Manika
Gangaram Bansode & ors. 2008(5) All M.R. 555 (V.R.
Kingaonkar, J)9.
(3) Smt. Annabai Devram Kini & ors. v/s. Mithilal Daisangar
Singh & ors. 2002(3) All M.R. 364 (Division Bench of A.P. Shah
and V.K. Tahilramani, JJ)10
9. In the case of Dwarika Prasad v/s. Nirmala & ors. 2010 (3)
Mh. L.J.41711, the Supreme Court has observed thus :
"7. This Court has heard the learned counsel
for the parties at length and considered the record of the
case. The argument that the respondent No. 1 was not
entitled to file application for restoration of the suit filed by
her late father, as right to sue did not survive in favour
of the respondent No. 1 has no merit. It is
well settled that where the right to sue is personal to the
deceased, the same does not survive for the benefit of his
legal representatives. There is no manner of doubt
that late father of the respondent No. 1 had filed
suit for partition of the joint properties. On his death
right to sue survived and the respondent No. 1 being his
daughter and legal representative was entitled to continue
the suit in view of the provisions of Hindu Succession Act.
7 AIR 1972 SC 1181
8 2005(1) Bom. C.R. 278
9 2008(5) All M.R. 555
10 2002(3) All M.R. 364
11 2010 (3) Mh. L.J.417
14 sa154.10
The deceased who was a male Hindu, claimed interest in the
joint properties which are subject matter of suit for partition.
The record does not indicate that he had executed a Will
though the appellant claimed that he had executed a Will
in favour of Vijai Kumar. It may be mentioned that the said
Vijai Kumar has not applied for being impleaded as a party
to the proceedings nor claimed interest in the properties of
the deceased. He, having died intestate, his
share in the joint properties shall devolve by intestate
succession as provided by Section 6 of the Hindu Succession
Act, 1956. Section 8 of the said Act which deals with
general rules of succession in the case of
males, inter alia, provides that the property of a male Hindu
dying intestate shall devolve firstly upon the heirs, being
relatives specified in Class I of the Schedule to the Act. A
daughter is specified as one of the relatives
ig in Class I
of the Schedule. Therefore, there is no manner of doubt
that the share of the deceased plaintiff in the suit
properties would devolve upon her, if suit for partition is
decreed. Rule 3 of Order XXII CPC, inter alia, stipulates that
when a sole plaintiff dies and the right to
sue survives, the Court on an application made in that behalf,
should cause the legal representative of the deceased
plaintiff to be made a party and shall
proceed with the suit. Thus, the respondent No.1 was
entitled to be substituted in place of her deceased father.
The record shows that she came to know later on that fraud
had been committed while getting Civil Suit No. 3A of 1996
dismissed as withdrawn. Hence, she was entitled to file
application for restoration of the suit. Thus, it is not
correct to argue that the respondent No. 1 was not
entitled to file application for restoration of the suit filed
by her father for partition of the joint properties."
10. The Supreme Court of India in the case of Jaladi Suguna v/s.
Satya Sai Central Trust & ors. 2008 (7 ) SCR 73412 has held thus :
"14. When a respondent in an appeal dies, and the right to
sue survives, the legal representatives of the deceased
respondent have to be brought on record before the court can
12 2008 (7 ) SCR 734
15 sa154.10
proceed further in the appeal. Where the respondent-plaintiff
who has succeeded in a suit, dies during the pendency of the
appeal, any judgment rendered on hearing the appeal filed by
the defendant, without bringing the legal representatives of
the deceased respondent - plaintiff on record, will be a nullity.
In the appeal before the High Court, the first respondent
therein (Suguna) was the contesting respondent and the
second respondent (tenant) was only a proforma respondent.
When first respondent in the appeal died, the right to
prosecute the appeal survived against her estate. Therefore it
was necessary to bring the legal representative/s of the
deceased Suguna on record to proceed with the appeal."
The Supreme Court has clearly held that if the entire Appeal abates,
then Judgment delivered in such an Appeal is a nullity. This
principle of law is also restated in the Judgment of Ambalal v/s.
Gopal & ors AIR 2001 SCW 199613."
3. In the present case the facts are not in dispute. The suit in the
present case was filed by the widow and daughter of Late Jagannath
Ghorpade against 7 Defendants for re-conveyance of their half share
pursuant to the Agreement dated 8/5/1956. The Defendant No. 7 Eknath
was the younger brother of Late Jagannath Ghorpade, predecessor in title
of the original Plaintiffs. No relief was claimed against the Defendant No.
7 and relief was claimed against the Defendant Nos. 1 to 6 jointly.
Defendant No. 7 however, filed a Written Statement and in the said
Written Statement he admitted the claim and though formal counter claim
was not filed, it was contended by him that he was also ready to repay the
13 AIR 2001 SCW 1996
16 sa154.10
half amount of mortgage deed and get the property reconvened in his
favour to the extent of ½ share. In my opinion, mortgage suit is one of the
suits where the decree is always joint and indivisible. In the present case,
6 heirs of the original mortgagee/purchaser were joined as Defendant Nos.
1 to 6 and the relief was claimed against them jointly. One of them
namely Defendant No. 3 Tanaji Ghorpade died during the pendency of the
Appeals and his heirs were admittedly not brought on record. Despite the
fact of the death of Tanaji right to sue survived and it was for the
Appellants to bring the heirs of Tanaji on record. It is possible that the
factum of death of deceased Tanaji may not have been reported to the
respective Appellants. However, merely on that count, the legal effect of
the abatement of the Appeals as against Tanaji does not cease to take
effect. Considering the nature of the controversy, it is necessary to decide
whether the Appeals could have proceeded against remaining Defendants
being Defendant Nos. 1, 2 and 4 to 6.
4. The answer is clear from the Judgments of the Supreme Court. In
State of Punjab v/s. Nathu Ram AIR 1962 SC 8914 the Supreme Court
has observed in paragraph 4 to 8 thus :
14 AIR 1962 SC 89
17 sa154.10
"4. It is not disputed that in view of 0. XXII, r. 4, Civil
Procedure Code, hereinafter called the Code, the appeal
abated against Labhu Ram, deceased, when no application for
bringing on record his legal representatives had been made
within the time limited by law. The Code does not provide for the
abatement of the appeal against the other respondents.
Courts have held that in certain circumstances, the
appeals against the co-respondents would also abate as a
result of the abatement of the appeal against the deceased
respondent. They have not been always agreed with respect to
the result of the particular circumstances of a case and there
has been, consequently, divergence of opinion in the application
of the principle. It will serve no useful purpose to consider the
cases. Suffice it to say that when 0. XXII, r. 4 does not provide for
the abatement of the appeals against the co-respondents of the
deceased respondent, there
ig can be no question of abatement
of the appeals against them. To say that the appeals against
them abated in certain circumstances, is not a correct
statement. Of course, the appeals against them cannot proceed
in certain circumstances and have therefore to be dismissed. Such
a result depends on the nature of the relief sought in the appeal.
5. The same conclusion is to be drawn from the provisions of 0.
1, r. 9, of the Code which provides that no suit shall be defeated
by reason of the misjoinder or non-joiner of parties and the
Court may, in every suit, deal with the matter in controversy
so far as regards the rights and interests of the parties
actually before it. It follows, therefore, that if the Court can deal
with the matter in controversy so far as regards the rights and
interests of the appellant and the respondents other than the
deceased respondent, it has to proceed with the appeal and decide
it. It is only when it is not possible for the Court to deal with
such matters, that it will have to refuse to proceed further with the
appeal and therefore dismiss it.
6. The question whether a Court can deal with such matters or
not, will depend on the facts of each case and therefore no
exhaustive statement can be made about the circumstances when
this is possible or is not possible. It may, however, be stated that
ordinarily the considerations which weigh with the Court in
18 sa154.10
deciding upon this question are whether the appeal between the
appellants and the respondents other than the deceased can be
said to be properly constituted or can be said to have all the
necessary parties for the decision of the controversy before the
Court. The test to determine this has been described in
diverse forms. Courts will not proceed with an appeal (s) when the
success of the appeal may lead to the Court's coming to a
decision which be in conflict with the decision between the
appellant and the deceased respondent and therefore which would
lead to the Court's passing a decree which will be
contradictory to the decree which had become final with respect
to the same subject matter between the appellant and the
deceased respondent; (b) when the appellant could not have
brought the action for the necessary relief against those
respondents alone who are still before the Court and (c) when
the decree against the surviving respondents, if
ig the appeal
succeeds, be ineffective, that is to say, it could not be successfully
executed.
7. There has been no divergence between the Courts about the
Court's proceeding with the appeal between the respondents
other than the deceased respondent, when the decree in appeal
was not a joint decree in favour of all the respondents.
The abatement of the appeal against the deceased respondent,
in such a case, would make the decree in his favour alone final,
and this can, in no circumstances,have a repercussion, on the
decision of the controversy between the appellant and the other
decree- holders or on the execution of the ultimate decree
between them.
8. The difficulty arises always when there is a joint decree.
Here again, the consensus of opinion is that if the decree is joint
and indivisible, the appeal against the other respondents also
will not be proceeded with and will have to be dismissed as a
result of the abatement of the appeal against the deceased
respondent. Different views exist in the case of joint decrees in
favour of respondents whose rights in the subject matter of the
decree are specified. One view is that in such cases, the abatement
of the appeal against the deceased respondent will have the
result of making the decree affecting his specific interest to be
19 sa154.10
final and that the decree against the other respondents can be
suitably dealt with by the appellate Court. We do not consider
this view correct. The specification of shares or of interest of the
deceased respondent does not affect the nature of the decree and
the capacity of the joint decree- holder to execute the entire decree
or to resist the attempt of the other party to interfere with the joint
right decreed in his favour. The abatement of an appeal means
not only that the decree between the appellant, and the
deceased respondent has become final, but also, as a
necessary corollary, that the appellate Court cannot, in any way,
modify that decree directly or indirectly. The reason is
plain. It is that in the absence of the legal representatives of the
deceased respondents, the appellate Court cannot determine
anything between the appellant and the legal representatives which
may affect the rights of the legal representatives under the
decree. It is immaterial that the
ig modification which the
Court will do is one to which exception can or cannot be taken."
5. In Kunhayammed & ors. v/s. State of Kerala & Anr. 2000(6) SCC
35915, the Supreme Court has held thus in paragraph 44 :
"44. To sum up our conclusions are :-
(i) Where an appeal or revision is provided against an order
passed by a court, tribunal or any other authority before superior
forum and such superior forum modifies, reverses or affirms the
decision put in issue before it, the decision by the subordinate
forum merges in the decision by the superior forum and it is the
latter which subsists, remains operative and is capable of
enforcement in the eye of law."
6. In Ambabai v/s. Gopal 2001(5) SCC 57016, the Supreme Court had
an occasion to deal with a similar situation where the Court was dealing
with a suit for partition and in that context it is observed thus in
15 2000(6) SCC 359
16 2001(5) SCC 570
20 sa154.10
paragraphs- 6 to 9 and 14 :
"6. The various provisions contained in Order 22, CPC,
explain the consequences of death of parties in a civil litigation.
If one of the plaintiffs dies and if the cause of action survives his
legal representatives have got a right to come on record and to
continue the proceedings. If the sole plaintiff dies and if the legal
representatives are not brought on record, the suit will abate and
Rule 9 of Order 22 CPC specifically prohibits the filing of a
fresh suit on the same cause of action. The only remedy available
to the legal representatives is to get themselves impleaded and
continue the proceedings, if the suit is already not abated, and
if abated, they have to file an application to set aside abatement
also.
7. In the instant case, deceased Radhu Lal, the second
appellant died on 14.12.1990 and his death was not brought to
the notice of the Court and the learned Single Judge
disposed of the appeal on merits by dismissing the Second Appeal
on 25.3.1991. As the Judgment in the Second Appeal was passed
without the knowledge that the appellant had died, the same
being a judgment passed against the dead person is a nullity.
When the second appellant Radhu Lal died on 14.12.1990, his
legal representatives could have taken steps to get themselves
impleaded in the Second Appeal proceedings and as it was not
done, the Second Appeal should be taken to have abated by
operation of law. Therefore, the question that requires to be
considered is that when there was abatement of the Second Appeal,
can there be a merger of the same with the decree passed by the
First Appellate Court?
8. Before considering the question of merger, we have to
consider the effect of abatement. When the Second Appeal had
abated and the legal representatives of the appellant were not
brought on record, the decree, which was passed by the First
Appellate Court, would acquire finality. A similar matter
came up before this Court in Rajendra Prasad and another Vs.
21 sa154.10
Khirodhar Mahto and Others 1994 Supp. (3) SCC 31417
wherein it was held that as a consequence of the abatement
of the appeal filed against final decree in a partition suit, the
preliminary decree would become final. In that case, the
appellants and Tapeshari Kuer filed a suit for partition of
immovable properties, including plaint 4 & 5 properties. The
property originally belonged to one Bishni Mahto. He
had two sons namely Sheobaran Mahto and Ramyad Mahto.
Tapeshari Kuer was the daughter of Ramyad Mahto. Plaint 4 &
5 properties were not partitioned between these two sons of Bishni
Mahto. Ramyad Mahto, the father of Tapeshari Kuer died and
she succeeded to the one half of the undivided share of the two
sons of Bishni Mahto. Tapeshari Kuer had executed a gift deed in
favour of the appellants bequeathing her undivided interest
inherited from her father in respect of plaint item no. 4 property.
The Trial Court decreed the suit declaring the half share of
Tapeshari Keur in plaint 5 of the property. Appellants who had
joined as plaintiffs 1 & 2 were held to have half share in plaint
item no. 4 by virtue of the gift deed executed by her. The
defendants in the suit filed an appeal and pending appeal,
Tapeshari Kuer died. Her legal heirs were not brought on
record. The Appellate Court gave a finding that Tapeshari
Keur was not the daughter of Ramyad Mahto and the appellant did
not acquire any interest in the undivided share. The suit was
dismissed. The original plaintiffs 1 & 2 filed the Second Appeal
before the High Court. The Second Appeal was dismissed, as the
heirs of Tapeshari Keur were not brought on record. The original
plaintiffs 1 & 2 carried the matter to this Court by special leave. It
was contended that the plaintiffs 1 & 2 were entitled to the
benefit of preliminary decree. Ultimately, this Court held that
whether Tapeshari Keur was the daughter of Ramyad Mahto or not
was required to be gone into only when her legal representatives
were brought on record. It was held that the decree against a
dead person was a nullity and, therefore, the declaration by the
First Appellate Court that Tapeshari Keur was not a daughter of
Ramyad Mahto was not valid in law. The High Court had held
that the decree of the Appellate Court was a nullity and the
respondent did not file any appeal against that part of the decree,
the result was that the preliminary decree became final.
17 1994 Supp. (3) SCC 314
22 sa154.10
9. In Rahmani Khatoon Vs. Harkoo Gope AIR 1981 SC
1450 , this Court held at page 1453 at para 10 as under:-
"The concept of abatement is known to civil law. If a party to
a proceeding either in the trial court or any appeal or revision
dies and the right to sue survives or a claim has to be
answered, the heirs and legal representatives of the
deceased party would have to be substituted and failure to do
so would result in abatement of proceedings. Now, if the party to
a suit dies and the abatement takes place, the suit would
abate. If a party to an appeal or revision dies and either the appeal
or revision abates, it will have no impact on the judgment decree
or order against which the appeal or revision is preferred. In fact,
such judgment, decree or order under appeal or revision
would become final."
14. In the instant case, there is no question of the
application of the doctrine of merger. As the second
appellant Radhulal died during the pendency of the appeal, and in
the absence of his legal heirs having taken any steps to prosecute
the Second Appeal, the decree passed by the First Appellate
Court must be deemed to have become final. By virtue of the order
passed by the First Appellate Court, the plaintiff's suit for specific
performance was decreed. Failure on the part of the legal heirs
of Radhulal to get themselves impleaded in the Second
Appeal and pursue the matter further shall not adversely
affect the plaintiff-decree holder as it would be against the
mandate of Rule 9 of Order 22, Code of Civil Procedure.
The impugned order is, therefore, not sustainable in law and the
same is set aside and the appeal is allowed. The Executing Court
may proceed with the execution proceedings. Parties to bear their
respective costs."
7. In the backdrop of the aforesaid legal position and particularly in
view of the fact that the Supreme Court has repeatedly held that a
18 AIR 1981 SC 1450
23 sa154.10
Judgment delivered by a Court in an Appeal which abates in its entirety is
a nullity and such an Appeal cannot be decided on merits on account of
abatement of Appeal against one of the parties to the Appeal where the
right to sue survives and in view of the nature of the Decree which was
sought being a decree jointly sought against the Defendant Nos. 1 to 6,
the only conclusion which is inevitable is that on account of the death of
Tanaji during the pendency of the 2 First Appeals in the District Court and
on account of the failure of the Appellants to bring the heirs of Tanaji on
record within a period of 90 days after his death, even though the said
Appellants may not be aware of the death, the Appeals abated as against
him and considering the nature of the dispute, the entire Appeals ought to
have been held to have abated and dismissed. Thus, the Judgment
delivered by the Learned Judge of the District Court dismissing the
Regular Civil Appeal No. 470 of 1994 filed by the original Plaintiffs in the
Suit is a Judgment which will have to be treated as a nullity and I hold
accordingly. When a Judgment is treated to be a nullity it really does not
exist in the eyes of law.
8. It is no doubt true that the original Plaintiff filed Second Appeal
No. 927 of 2005 in this Court which was dismissed by the learned Single
24 sa154.10
Judge (P.V. Kakade, J) by a Judgment and Order dated 6/9/2005 at the
stage of admission itself. On this basis, Mr. Warunjikar tried to urge that
since the Second Appeal No. 927 of 2005 was summarily dismissed, there
is no merger. I do not agree. The Supreme Court has clearly
distinguished between an Appeal and Revision on one side and Special
Leave Petition on the other. In paragraph 44(i), the Supreme Court has
clearly held that once the Appellate forum affirms a decision put before it
decision of the subordinate forum merges in the decision of the superior
forum and it is the latter which subsists, remains operative and is capable
of enforcement in the eye of law. In our case, the Judgment of the District
Court in the first Appeal being Civil Appeal No. 470 of 1994 is a nullity,
obviously it did not exist in law and same Judgment which did not exist
in law can never be said to have merged in the Judgment of the superior
forum. Precisely for this reason, the conclusion is inevitable that there is
no merger of the said Judgment in the Judgment delivered by Justice P.V.
Kakade.
9. In view of the aforesaid discussion, it is not necessary to answer the
fourth question of law which has been framed. Mr. Bodake vehemently
submitted that the heirs of the Defendant No. 7 had no locus standi to file
25 sa154.10
an appeal. However, that question is not decided and is kept open for
consideration in case any application for revival of the Civil Appeal No.
510 of 1994 is made.
10. I therefore record my conclusions on the questions of Law framed :-
Answer to Question No. 1 : In view of the fact that the Judgment and
Order dated 24/9/2004 passed in R.C. Appeal No. 470 of 1994 has been
declared to be a nullity, the Judgment of the Trial Court does not merge
with it and, consequently, there is no question of Civil Appeal No. 510 of
1994 being held to be not maintainable on the ground of merger.
Answer to Question No. 2 : Considering nature of reliefs claimed in the
Suit, on account of abatement of the R.C. Appeal Nos. 470 of 1994 and
510 of 1994 after the expiry of period of 90 days from 15/6/1998 when
Defendant No. 3 Tanaji died; both these Appeals abated as against
Defendant No. 3 Tanaji since right to sue survived and his heirs were not
brought on record. Consequently, considering the nature of Suit both the
Appeals did not really survive for consideration on merits in their
entirety and the Judgments delivered in both the appeals are nullity.
Answer to Question No. 3 : In view of the discussion in paragraph 8
above, there is no merger of the Judgment in R.C. Appeal No. 470 of
26 sa154.10
1994, which did not exist and was a nullity, in the Judgment delivered in
Second Appeal No. 927 of 2005.
Answer to Question No. 4 : In view of the aforesaid 3 questions it is not
necessary to answer question No. 4 at this stage.
11. It is needless to state that this order does not preclude the
Appellants in R.C. Appeal Nos. 470 of 1994 and 510 of 1994 from filing
appropriate application for condonation of delay in setting aside the
abatement of the Appeals and for bringing heirs of the deceased Tanaji in
the respective Appeals on record and, if and when such applications are
filed, the same shall be determined on merits and in accordance with law.
It is made clear that merely on account of these observations it should not
be construed that R.C. Appeal No. 510 of 1994 is maintainable as that
question is expressly kept open to be decided by the District Court, if
occasion so arises. The Second Appeal is disposed of in the aforesaid
terms with no order as to costs.
12. Since the impugned Judgment and Decree dated 27/11/2009 passed
in R.C. Appeal No. 510 of 1994 is held to be a nullity, it is obvious that it
does not exist in the eyes of law, however, for the sake of record the same
27 sa154.10
is hereby quashed and set aside and Second Appeal is allowed. On
account of this, Judgment and Decree of the Trial Court will stand
revived. However, this Order should not be construed to be an Order
confirming the Judgment and Decree of the Trial Court.
13. In view of the dismissal of the Second Appeal, nothing survives in
Civil Applications for consideration. The same are also disposed of
accordingly.
(GIRISH GODBOLE, J)
(1) Budh Ram & ors. v/s Bansi & & Ors AIR 2010 SCW 5071.
(2) Zahirul Islam Vs. Mohd. Usman & Ors. (2003) 1 SCC 476.
(3) T. Gnanavel Vs. T.S. Kanagaraj & Anr. AIR 2009 SC 2367.
(4) Ramagya Prasad Gupta & Ors. Vs. Brahmadeo Prasad Gupta &
Anr. AIR 1972 SC 1181.
(5) Sardar Amarjit Singh Kalra & Ors. Vs. Pramod Gupta & Ors. AIR
2003 SC 2588.
(6) Shahazada Bi & Ors. Vs. Halimabi AIR 2004 SC 3942.
(7) Ramagya Prasad Gupta v/s. Murli Prasad in AIR 1972 SC 1181.
(8) Govind Laxman Jadhav v/s. Namdeo Balu Jadhav 2005(1) Bom.
C.R. 278 (A.S. Oka, J).
(9) Govind Vishwanath Bansode & Anr. v/s. Manika Gangaram
Bansode & ors. 2008(5) All M.R. 555 (V.R. Kingaonkar, J).
(10)Smt. Annabai Devram Kini & ors. v/s. Mithilal Daisangar Singh &
ors. 2002(3) All M.R. 364 (Division Bench of A.P. Shah and V.K.
Tahilramani, JJ).
(11)Dwarika Prasad v/s. Nirmala & ors. 2010 (3) Mh. L.J.417.
(12)Jaladi Suguna v/s. Satya Sai Central Trust & ors. 2008 (7 ) SCR
734.
28 sa154.10
(13)Ambalal v/s. Gopal & ors AIR 2001 SCW 1996.
(14)State of Punjab v/s. Nathu Ram AIR 1962 SC 89.
(15)Kunhayammed & ors. v/s. State of Kerala & Anr. 2000(6) SCC
359.
(16)Ambabai v/s. Gopal 2001(5) SCC 570
(17)Rajendra Prasad and another Vs. Khirodhar Mahto and Others
1994 Supp. (3) SCC 314
(18)Rahmani Khatoon Vs. Harkoo Gope AIR 1981 SC 1450
