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Suba Gobind Rai and ors. Vs. Mt. Anar Koer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All349
AppellantSuba Gobind Rai and ors.
RespondentMt. Anar Koer and ors.
Excerpt:
.....section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it is argued that 'the applicants were virtually the appellants and that consequently the death of jagat gobind rai, and failure of his legal representatives to have themselves brought on the record within limitation, could not occasion the abatement of the appeal, as his right survived to the applicants who were already pro forma respondents in the second appeal. 2. we are satisfied that this application has no force.niamatullah, j.1. this application-raises a somewhat novel question. one jagat gobind rai was one of several defendants in a suit instituted by certain persons as plaintiffs. the suit was dismissed by the trial court on 10th december 1928. on appeal the suit was decreed on 29th april 1929 by the lower appellate court. jagat gobind rai preferred a second appeal, the other co-defendants not joining with him as appellants. thus jagat gobind rai was the sole appellant in the second appeal. jagat gobind rai died on 30th october 1929. no application for his legal representatives being brought on the record was made within the ninety days-allowed by law. an application subsequently made for substitution was dismissed as time barred and the appeal declared to have abated. the present application.....
Judgment:

Niamatullah, J.

1. This application-raises a somewhat novel question. One Jagat Gobind Rai was one of several defendants in a suit instituted by certain persons as plaintiffs. The suit was dismissed by the trial Court on 10th December 1928. On appeal the suit was decreed on 29th April 1929 by the lower appellate Court. Jagat Gobind Rai preferred a second appeal, the other co-defendants not joining with him as appellants. Thus Jagat Gobind Rai was the sole appellant in the second appeal. Jagat Gobind Rai died on 30th October 1929. No application for his legal representatives being brought on the record was made within the ninety days-allowed by law. An application subsequently made for substitution was dismissed as time barred and the appeal declared to have abated. The present application has been made by the co-defendants of Jagat Gobind Rai on the allegation that they were pro forma respondents in the second appeal preferred by Jagat Gobind Rai for the benefit of himself and his co-defendants under Order 41, Rule 4, Civil P.C. It is argued that 'the applicants were virtually the appellants and that consequently the death of Jagat Gobind Rai, and failure of his legal representatives to have themselves brought on the record within limitation, could not occasion the abatement of the appeal, as his right survived to the applicants who were already pro forma respondents in the second appeal. Reliance is placed on Order 41, Rule 4, and Order 22, Rule 2, Civil P.C. We are unable to give effect to the view contended for before us. Order 41, Rule 4, merely enables one of several plaintiffs or defendants to appeal from a decree which proceeds on a ground common to them all. It does not provide that the plaintiffs or defendants who do not join with the appellant should be considered to be appellants for any purpose. It may be that the law entitles them to the benefit of the decree if it is obtained by a party whose interests are identical with their own, but this circumstance cannot convert a respondent in the array of parties into an appellant. If therefore they cannot be considered to be appellants on that account Order 22, R.2, Civil P. C, which applies only to a case of one of several appellants, can have no application to the circumstances before us. Jagat Gobind Rai being the sole appellant, and no legal representatives having been brought on the record after his death, the appeal automatically abated. His interests in the litigation could not survive to any appellant, even though he be a respondent who might have figured on the same side in the array of parties in the original suit.

2. We are satisfied that this application has no force. It is accordingly dismissed with costs.


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