Mr. Arjun Dashrath Bhuse ... vs Mr. Shankar Mahadu Khairnar And ...
2021 Latest Caselaw 3939 Bom

                                                                            5. CAF 3098-2018.doc



Anand                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION

                                CIVIL APPLICATION NO. 3098 OF 2018
                                                IN
                                   FIRST APPEAL NO. 922 OF 2018

         Arjun Dashrath Bhuse Patil (Khairnar) & ors.                    .Applicants

                              Vs.

         Shankar Mahadu Khairnar & ors.                                  .Respondents

         Mr. R. A. Thorat, Senior Advocate a/w Mr. N. R. Bubna, for the
         Applicants
         Mr. Sandesh Patil i/b. Mr. Chintan Shah, Advocate, for the Respondent
         Nos. 1 to 3

                           CORAM       :     K.K.TATED &
                                             RIYAZ I. CHAGLA, JJ.

                           DATE        :     MARCH 3, 2021
         P. C.

         .                 Heard learned senior counsel for the Applicants and

learned counsel for the Respondent Nos. 1 to 3.

2. By this Civil Application, the Applicants ( Original

Plaintiffs ) are seeking an order of injunction restraining the

Respondents ( Original Defendants ) from withdrawing an amount

towards compensation of the suit property, being agricultural land

bearing Survey No. 94, area admeasuring 1 H 77 R within the limits of

Malegaon Municipal Corporation more particularly described in the

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plaint of the Special Civil Suit No. 87 of 2012.

3. The learned senior counsel for the Applicants submits that

in the present proceedings, the Applicants filed the suit, being Special

Civil Suit No. 87 of 2012 for specific performance of agreement for sale

dated 30.11.1985. He submits that out of total compensation of

Rs. 7,00,000/-, the Applicants paid Rs. 2,00,000/- to the Respondents.

He submits that in meanwhile, the State of Maharashtra acquired the

said land.

4. The learned senior counsel for the Applicants submits that

in view of acquisition of the said land, the Applicants as well as the

Respondents entered into an agreement dated 25.11.1988 ( Exh. 122 )

stating that the Applicants get 80% of the compensation in respect of

acquired land and the Respondents get 20% of the compensation. He

submits that for recovery of the said compensation amount, the

Respondents filed an Execution Application and the next date before

the executing Court is 08.03.2021. He submits that today, the learned

counsel appearing on behalf of the Respondents made a statement

before this Court that the Applicant No. 4 - Nisar Ahmed Mohd. Umar

died on 14.05.2020. He submits that in view of this subsequent

development, the Applicants were required to take out appropriate 2 of 10

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Application for bringing his legal heirs on record. He submits that in

meanwhile, if the Respondents withdrew the entire amount deposited

by the State of Maharashtra then nothing will survive in the present

proceedings. In the interest of justice, this Hon'ble Court be pleased to

restrain the Respondents from withdrawing the said amount for some

time so that the Applicants can prefer an Application for bringing the

legal heirs on record of Applicant No. 4. He further submits that in any

case, in view of O. 41, Rule 4 of C. P. C., there is no question of

abatement of entire first appeal. O. 41, Rule 4 of the Code of Civil

Procedure ( for short 'CPC') reads thus :-

"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. - Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."

5. On the basis of this submission, the learned counsel for the

Applicants submits that the Respondents be restrained from

withdrawing the amount of compensation awarded in respect of the

suit property for some time.

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6. On the other hand, learned counsel appearing for the

Respondents vehemently opposed the Application seeking an injunction

restraining them from withdrawing the amount of compensation.

7. Learned counsel for the Respondents submits that though

the Applicant No. 4 expired on 14.05.2020, till today, the Applicants

failed and neglected to take out appropriate proceedings for bringing

the legal heirs of Applicant No. 4 on record. He further submits that

even in meanwhile, the Applicants preferred the W. P. (St) No. 939 of

2021. He submits that in that Writ Petition, the Applicant No. 4 was not

made party to the proceedings. This itself shows that they had

knowledge about the death of Applicant No. 4 and despite that they

failed and neglected to take out appropriate proceedings for bringing

his legal heirs on record.

8. Learned counsel for the Respondents submits that in view

of death of Applicant No. 4, nothing survives in the present

proceedings. He submits that the Appeal itself stands abated.

Therefore, there is no question of granting any ad-interim relief in the

present Civil Application. In support of his submission, learned counsel

for the Respondents relies on the Judgment in the matter of 4 of 10

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Sheela wd/o. Vijay Choudhari and others Vs. Central Bank of India and

others, reported in 1998(1) Mh. L. J. 928. He more particularly relies

on paras 11(8) and 11(9) which read thus :-

"(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 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 respondent, 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 modification which the Court will do is one to which 5 of 10

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exception can or cannot be taken.

(9) It is, therefore, necessary to determine, on the facts of this case, whether the State appeal could proceed against Nathu Ram. The award of the arbitrator in each of these cases was a joint one, in favour of both the respondents Labhu Ram and Nathu Ram. To illustrate the form of the award, we may quote the award for the year 1945-46 in the proceedings leading to Civil Appeal No. 635 of 1957. It is :

"On the basis of the report of S. Lal Singh, Naib Tahsildar (Exhibit P.W. 9/1) and Sheikh Aziz Din, Tahsildar, Exhibit P.W. 9/2, the applicants are entitled to a sum of Rs. 4,140/- on account of rent, plus Rs. 3,872/8/0 on account of Income tax, etc. due to the inclusion of Rs. 6,193/8/0 in their total income, plus such sum as the Petitioners have to pay to the Income-tax Department on account of the inclusion of Rs. 4,140/- in their income as awarded by this award."

The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Ram's share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of

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compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed."

9. Learned counsel for the Respondents further submits that

there is no question of any specific order towards the abatement of the

matter. He submits that our High Court also held that after expiry of

the limitation period for bringing the legal heirs on record of the

deceased parties, the suit and or proceedings stand abated

automatically. In support of his contention he relies on the Judgment in

the matter of Jayalaxmi Janardhan Walawalkar and others Vs.

Lilachand Laxmichand Kapasi and others, reported in 1998(3) Mh. L.

J. 618.

10. Learned counsel for the Respondents also relies on the

following Judgments in support of his contention which are as under :-

(i) Rattan Chand Hira Chand Vs. Askar Nawaz Jung (Dead) by Lrs.

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And others, reported in (1991) 3 Supreme Court Cases 67;

(ii) Dalip Singh Vs. State of Uttar Pradesh and others, reported in

(2010) 2 Supreme Court Cases 114.

11. On the basis of this submission, learned counsel for the

Respondents submits that there is no question of granting any

ad-interim relief in favour of the Applicants at present in view of the

abatement of the entire Appeal.

12. We heard both the sides at length.

13. It is to be noted that during the pendency of the Suit, the

land was acquired by the Government and awarded compensation in

respect of the acquired land. Hence, the Applicants and Respondents

entered into an agreement dated 25.11.1998 being Exhibit 122 stating

that the Applicant is entitled 80% of the compensation in respect of

acquired land and the Respondents original defendants will get 20% of

the compensation. In any case, the Suit was dismissed by the Trial

Court. Hence, the Applicant preferred the present First Appeal. During

the pendency of the First Appeal, the Respondents original defendants

filed Execution Application before the executing court for recovery of 8 of 10

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the compensation amount in respect of acquired land. The next date of

hearing is 08.03.2021. Not only that, the advocate for the Respondents

pointed out that the Applicant no. 4, Nisar Ahmed Mohd. Umar died on

14.05.2020 and it remained on the part of Applicants to bring the legal

heirs on record in the present application as well as in First Appeal.

14. The learned Counsel for the Respondents pointed out that

in view of death of one of the original plaintiff entire Suit abates.

Therefore, there is no question of granting any ad-interim relief at

present in favour of Applicant.

15. It is to be noted that bare reading of Order 41 Rule 4 of

the Code of Civil Procedure, 1908 clearly shows that even if one of the

party dies during the course of pendency of the Suit then entire Suit

does not abate, if cause of action is jointly and severally. In any case, all

these issues are required to be decided on its own merits. If application

is preferred by the Applicant for bringing legal heirs on record of

deceased Applicant no. 4 but till that time, if entire amount is

recovered by the Respondents original defendants in execution

application then nothing will survive in the present proceeding.

16. In view of these facts, the following order is passed :-

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(i) The Respondents are restrained from withdrawing the

amount of compensation awarded in respect of the suit property till

31.03.2021;

(ii) If an Application is preferred by the Applicants for bringing

the legal heirs of the Applicant No. 4 on record and for other reliefs,

that will be decided on its own merits after hearing both the sides;

(iii) The matter to appear on board on 08.04.2021 under the

caption 'For Directions'.

 (RIYAZ I. CHAGLA, J.)                                              (K.K.TATED, J.)




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