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Kamlapat and anr. Vs. Baldeo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All222
AppellantKamlapat and anr.
RespondentBaldeo and ors.
Excerpt:
execution of decree - suit under section 231 of the civil procedure code--suit decreed--appeal by decree-holders--death of one of two joint decree-holders--abatement of appeal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section..........argument is that as the money decree passed in favour of kamlapat and musammat anandi was a joint decree, musammat anandi is, under section 231 of the code of civil procedure, entitled to sue out execution of the entire decree for the benefit of all the joint decree-holders and of the representatives in interest of any deceased joint decree-holder, and that the right to proceed with the appeal in the absence of any representative of her co-appellant has therefore survived to her. the reply to this argument is that the proceedings now before me are not proceedings in execution of a decree, but are appellate proceedings in a suit to which section 231 has no application. what i have to decide is not whether musammat anandi alone could prosecute execution proceedings under section 231, but.....
Judgment:

Burkitt, J.

1. In this case the plaintiffs, now respondents, instituted a suit against the defendants, now appellants, to have it declared that certain property attached by the defendants in execution of a money decree against the father of the plaintiffs belonged to the plaintiffs, and -was not liable to be taken in execution of the decree against their father. The suit was dismissed by the Court of First Instance, bat was decreed on appeal by the Subordinate Judge. From that decree the unsuccessful defendants (the decree-holders Kamlapat and Musammat Anandi) preferred a second appeal to this Court.

2. That appeal came on for hearing before me sitting alone, and having heard the parties I referred an issue to the Lower Appellate Court under Section 566 of the Code of Civil Procedure. The Subordinate Judge in reply returned the issue without any finding. He reported that Kamlapat, one of the appellants, had died, and that therefore he was unable to proceed to the trial of the issue remitted to him. The fact of Kamlapat's death was not known when the appeal originally came on before me for hearing.

3. Under the above circumstances it is contended for the respondents that the appeal has now abated, and I have to decide whether that contention is well founded or not.

4. It is not denied that more than six months have elapsed since the death of Kamlapat, and admittedly no application either by the co-appellant, Musammit Anandi, or by anyone on behalf of the representatives of the deceased appellant, to have his representative brought on the record, has been made. So prima facie it would appear that the appeal must be held to have abated. It is contended, however, that the right to proceed with the appeal has survived to the co-appellant, Musammat Anandi, and that I should act as provided in Section 362 of the Code of Civil Procedure. The argument is that as the money decree passed in favour of Kamlapat and Musammat Anandi was a joint decree, Musammat Anandi is, under Section 231 of the Code of Civil Procedure, entitled to sue out execution of the entire decree for the benefit of all the joint decree-holders and of the representatives in interest of any deceased joint decree-holder, and that the right to proceed with the appeal in the absence of any representative of her co-appellant has therefore survived to her. The reply to this argument is that the proceedings now before me are not proceedings in execution of a decree, but are appellate proceedings in a suit to which Section 231 has no application. What I have to decide is not whether Musammat Anandi alone could prosecute execution proceedings under Section 231, but whether the right to appeal from the Subordinate Judge's decree in a suit in which she and her deceased co-appellant, Kamlapat, were unsuccessful defendants, survives to her within the meaning of Section 362 of the Code. In my opinion that question must be answered in the negative. In the case of Ghamandi Lal v. Amir Begam Weekly Notes 1894 p. 22, it was distinctly laid down that a Court hearing an appeal should have before it all persons whose interests might be affected by the decree in appeal. Now here there were two persons, Kamlapat and Musammat Anandi, both equally interested to procure a reversal of the decree of the Subordinate Judge by which their suit was dismissed. One of those persons died more than six months ago after they had appealed to this Court against the decree of the Subordinate Judge. No application has been made to bring his representative on the record. It has not been shown or even alleged that the deceased Kamlapat left no legal representative, or that the surviving appellant, Musammat Anandi, is such representative. It is most unlikely that she could be Kamlapat's legal representative. On this state of facts there are no materials on which I can find that the right to prosecute the appeal survived to Musammat Anandi alone. I must therefore hold that the appeal has abated. I accordingly dismiss it with costs.


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