1. In this appeal a point of law has been raised on a preliminary objection as to whether the appeal abates as a whole in view of thefact that the present respondent No. 2 Anusuya died sometime in December 1955 and the appellant has not brought her heirs on the record within time. It appears that on February 19 last this appeal came up for hearing before Mr. Justice Mudholkar, and at the request of Mr. D.T. Mangalmurti, the learned advocate for the appellant, it was adjourned for a fortnight to enable him to take steps to bring on record the legal representatives of Anusuya, and the order further stated that if no steps were taken, the appeal should be put up for hearing on the Board. When this appeal came on for hearing Mr. Jakatdar, the learned advocate who appears for respondent No. 1, has raised a preliminary objection that the appeal cannot proceed because it has abated as a whole as Anusuyabai's legal representatives have not been brought on record. This preliminary objection is met by Mr. Mangalmurti who says that the appeal would not abate as a whole, and since the appellant has not brought on record within time the legal representatives of respondent Nos. 2, under Order XXII, Rule 4, of the Civil Procedure Code, the appeal has abated as against respondent No. 2 only.
2. In order to appreciate the point which has been raised, a few facts will have to be stated. One Govinda died, leaving behind two widows Gendabai and Mirabai. Gendabai had two daughters, Mankarnikabai and Anusuyabai, respondents Nos. 1 and 2 in this appeal. Govinda died in 1915, and a few months after his death, Gendabai adopted in June 1915 Sakharam who is the present respondent No. 3. Govinda owned movable as well as immovable property and he had a one-third share in Survey No. 18. About five years after his death, that is to say in 1920, the remaining two-third share in Survey No. 18 was acquired by Gendabai in the names of her daughters Mankarnikabai and Anusuyabai. Mirabai, the other widow of Govinda, filed a suit for maintenance in 1926 against Sakharam, the adopted son, who then being a minor, was represented by his guardian-ad-litem Gendabai. The Court granted her maintenance which was made a charge on Sakharam's property. That charge extended to one-third share in Survey No. 18. In 1927 Sakharam filed a suit against his adoptive mother Gendabai and the two daughters Mankarnikabai and Anusuyabai and some others for possession of the property belonging to the deceased Govinda on the basis of his title as an adopted son. Mirabai was not a party to this suit. Sakharam succeeded in the trial Court, and, against that decree Gendabai and others went in appeal. In the appeal there was a compromise between Sakharam and Gendabai and there was a decree in terms of the compromise passed on January 8, 1931. As a result of that compromise, Gendabai obtained in absolute ownership certain fields including the whole of Survey No. 18. Gendabai died in 1940 and, in 1944 because Mirabai was not paid her maintenance, she sought to execute the decree for maintenance obtained by her, and the whole of Survey No. 18 came to be attached and it was sold by her in execution of the decree. The entire Survey No. 18 was purchased in auction sale by the present appellant-plaintiff. Mankarnikabai and Anusuyabai filed an objection under Order XXI, Rule 100, of the Civil Procedure Code, saying that they were in possession of Survey No. 18 and they asked for its release as heirs of Gendabai.
3. The executing Court allowed their objection petition only with respect to two-third share in Survey No. 18 and disallowed it so far as one-third share was concerned. The purchaser Motiram, that is to say the present appellant, was directed to put the objectors Mankarnikabai and Anusayabai in possession of a two-third share. That was an order passed by the executing Court under Order XXI, Rule 101, Civil Procedure Code on February 9, 1940. The plaintiff consequently filed the present suit under Order XXI, Rule 103, Civil Procedure Code, on January 20, 1917, and the first prayer of the plaintiff in this suit was that the order dated February 9, 1946, passed by the Court of the 1st Civil Judge, 2nd Class, Akola, in Miscellaneous Judicial Case No. 70 of 1945 be set aside and, in consequence, it be declared that the plaintiff is the owner of the field described in para. No. 1 of the plaint, i.e. S. No. 18, and the same be delivered in his possession.
4. The trial Court dismissed the plaintiff's suit holding that the compromise between Gendabai and Sakharam was not fraudulent and collusive and only one-third share in Survey No. 18 could be sold in execution of the maintenance decree of Mirabai and that, therefore, plaintiff could get title with respect to one-third share only. That decision was confirmed in appeal by the Third Additional District Judge, Akola. That is why the plaintiff has filed this second appeal, and the question before me is whether Anusuyabai having died during the pendency of the appeal and her heirs having not been brought on record, whether the appeal would abate only in so far as the interest of Anusuyabai is concerned or whether it would abate as a whole as contended by Mr. Jakatdar.
5. Under O, XXII, Rule 4(I), of the Civil Procedure Code, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, 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. But under Sub-rule (3) where within the time limited by law no application is made under Sub-rule (I), the suit shall abate as against the deceased defendant. Under Order XXII, Rule 11, the word 'suit' in the application of this order includes 'an appeal,' and the word 'defendant' a 'respondent'. Mr. Mangalmurti contends strenuously that by virtue of the provisions of Order XXII, Rule 4(3), read with Rule 11, the only order that the Court can pass is that the appeal has abated as regards the deceased Anusuyabai only and not as a whole.
6. There is no dispute between the parties as to the nature of the interest that would be taken by Mankarnikabai and Anusuyabai. It is common ground that assuming that the two-third share in S. No. 18 which Gendabai obtained under the compromise decree was stridhan property as held by the lower Courts, that two-third interest would pass to Mankarnikabai and Anusuyabai on Gendabai's death and would be taken by them as tenants-in-common, and Mr. Mangalmurti contends that this being a suit filed against joint owners of certain property and the two lower Courts having dismissed the plaintiff's suit, if the appellant fails to bring the heirs of one of the respondents on record, the appeal can only abate as regards Anusuyabai and not as a whole. Mr. Mangalmurti relied in support of his argument on a ruling of the Bombay High Court in Shankerbhai Manorbhai v. Motilal Ramdas ILR (1924) 49 Bom. 118 : . 20 Bom. L.R. 1217 in support of his contention. Now, in that case, an uncle and a nephew had sought to recover possession of a house site from the defendants and the two plaintiffs were claiming the property as tenants-in-common. The nephew, who was plaintiff No. 2, died during the pendency of the suit and his widow Bai Chanchal was joined as his legal representative. A decree was passed in favour of the two plaintiffs by the trial Court. The defendants appealed to the District Court. During the pendency of the appeal, Bai Chanchal, who was respondent No. 2, died and an application was made by the defendant-appellant to the effect that the surviving respondent No. 1, original plaintiff No. 1, was the heir of the deceased respondent No. 2 and that the appeal could go on against him without any other person being brought on the record in place of respondent No. 2. The appellate Court disallowed the application to treat respondent No. 1 as the heir of respondent No. 2 and held that as the shares of the co-owners were not ascertained, the appeal abated as regards respondent No. 1 also. As against that, there was an appeal to the High Court, and this Court held that the appeal abated only against the deceased respondent No. 2 and it could proceed against respondent No. 1, though Sir Lallubhai. Shah, Acting Chief Justice, referred to the possible difficulty arising in granting effective relief against the other respondents in such cases which lie said must depend largely on the nature of the suit.
7. Now, in the present case, it is not the contention of Mr. Mangalmurti that Mankarnikabai is the heir of Anusuyabai. He wants me to proceed on the basis that Anusuyabai has left her own heirs and they not having been brought on record within time, her name should be deleted from the record. That is one aspect which must be borne in mind when dealing with this case. Mr. Jakatdar contends that the nature of the present suit must also be considered in order to decide whether the appeal will abate as a whole or only as against respondent No. 2. I have already referred to the fact that plaintiff filed this suit as he was aggrieved by the order of the executing Court dated February 9, 1946, which released the two-third share of Mankarnikabai and of Anusuyabai and disallowed the objection petition to the extent of one-third share only. The present appellant Motiram was directed to put Mankarnikabai and Anusuyabai, defendants Nos. 1 and 2, into possession of a two-third share. In para. No. 6 of the plaint, the plaintiff has stated that defendants Nos. 1 and 2 are claiming title to the two-third share and it is necessary for the plaintiff to have the order of February 9, 1946, set aside and to re-obtain possession of the two-third share as owner thereof in consequence of the setting aside of the said order and for accounts and profits thereafter. In prayer Clause (a) plaintiff has prayed that the order of the executing Court should be set aside and in consequence it be declared that the plaintiff is the owner of the field Survey No. 18 and the same be delivered into his possession, and in prayer Clause (b) plaintiff wants an account of profits to be taken from defendants Nos. 1 and 2 with respect to the field in suit from the date of the order till delivery of possession of the same to the plaintiff. Mr. Mangalmurti contends that I should ignore the plaintiff's prayer as regards the setting aside of the order. Under Order XXI, Rule 103, Civil Procedure Code, any party not being a judgment-debtor against whom an order is made under Rule 98, 99 or 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive. Mr. Jakatdar has relied upon the observations of Mr. Justice Lokur in Hakimbu v. Dayabhai : AIR1939Bom508 where the learned Judge points out that in a suit filed under the provisions of Order XXI, Rule 103, of the Civil Procedure Code, if the plaintiff succeeds in establishing the right which he claims to the present possession of the property, the order of the executing Court passed against him must be set aside and the status quo, as at the date of the order, must be restored. There is no dispute that the order passed against the present appellant-plaintiff under Order XXI, Rule 101 had the effect of denying his title with reference to two-third share in S. No. 18 and his right to possession of that share. In order to set aside this order he filed the present suit within the prescribed period of limitation. What he has to establish in this suit is the right which he claims to the present possession of the two-third share in the property which was claimed by both Mankarnikabai and Anusuyabai as the heirs of Gendabai. It is not alleged that there was any partition between the two, and it would appear from the plaint that they were both in possession of the suit property. If, therefore, this appeal proceeds without the legal heirs of Anusuyabai being brought on record, then the order of the executing Court under Order XXI, Rule 101, will be conclusive so far as the heirs of Anusuyabai are concerned, and in case plaintiff succeeds in this appeal, it would have to be set aside so far as Mankarnikabai is concerned and accounts of profits directed against her.
8. In my opinion, therefore, there would be two inconsistent decrees if plaintiff were to proceed with the appeal without the legal representatives of Anusuyabai being brought on record, and if he were to succeed on merits in this appeal. In that view of the matter, I must uphold the preliminary objection raised by Mr. Jakatdar and hold that the appeal abates as a whole and not merely as regards respondent No. 2, Anusuyabai.
9. The result is that the whole appeal abates and must be dismissed with costs in favour of respondent No. 1.