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Sheo Chand Misra Vs. Sita Ram Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All331
AppellantSheo Chand Misra
RespondentSita Ram Misra and anr.
Cases ReferredBikramajit Rai v. Darshan Das A.I.R.
Excerpt:
- - in my opinion the failure of the plaintiff-appellant to substitute the legal representatives of sita ram within the period allowed by law has entailed the abatement of the entire appeal. 5. the test to determine whether or not the failure to bring upon the record the heirs of one of several respondents, who has died has the effect of causing an abatement of the entire appeal or qua that particular respondent alone, is as to whether or not the appeal can be decided without, as a result of that decision, bringing into existence two decrees contrary to each other......a suit for redemption of a mortgage. the mortgage was in favour of two persons lachhman misser and sita ram misser. before the institution of the suit lachhman misser had died leaving as his legal representative one raj ballaw misser who was arrayed as defendant no. 2 and sita ram misser was arrayed as defendant no. 1.2. the suit was decreed by the trial court but the decree of the trial court has been reversed by the lower appellate court and the suit has been dismissed. during the pendency of the appeal in this court sita ram misser died, and no step was taken in this court, within the statutory period, to bring on the record his heirs and legal representatives. it appears from the affidavit filed on behalf of the defendant-respondent that sita ram misser died so back as in the month.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit for redemption of a mortgage. The mortgage was in favour of two persons Lachhman Misser and Sita Ram Misser. Before the institution of the suit Lachhman Misser had died leaving as his legal representative one Raj Ballaw Misser who was arrayed as Defendant No. 2 and Sita Ram Misser was arrayed as Defendant No. 1.

2. The suit was decreed by the trial Court but the decree of the trial Court has been reversed by the lower appellate Court and the suit has been dismissed. During the pendency of the appeal in this Court Sita Ram Misser died, and no step was taken in this Court, within the statutory period, to bring on the record his heirs and legal representatives. It appears from the affidavit filed on behalf of the defendant-respondent that Sita Ram Misser died so back as in the month of May 1925. An affidavit on behalf of the plaintiff-appellant has been filed to-day, and in it the allegation is that Sita Ram Misser was living at a far off place from the residence of the plaintiff-appellant, and that the plaintiff-appellant for the first time came to know of the fact of his death when the contents of the affidavit filed on behalf of the respondents were communicated, to him by his learned Counsel.

3. Be that as it may, no step having been taken to bring upon the record the legal representatives of Sita Ram Misser within the period allowed by law, the appeal as against him automatically abated, vide Churya v. Baneshwar : AIR1926All217 . The only question that remains is whether or not the appeal has abated as a whole i.e., even as against Raj Ballaw. In my opinion the failure of the plaintiff-appellant to substitute the legal representatives of Sita Ram within the period allowed by law has entailed the abatement of the entire appeal.

4. The mortgage in favour of the two mortgagees named above was a joint mortgage. There was no specification of the mortgage-money respectively advanced by the two mortgagees, nor was there any specification of their interests' as mortgagees. As such the mortgage either could be redeemed as a whole or could not be redeemed at all. To put it in another way, if the plaintiff had sued for redemption of that mortgage and had impleaded only one of the mortgagees as defendants in the suit, the suit would have been liable to be dismissed on the ground that all the persons who had an interest in the mortgages or in the mortgage property had not been impleaded as parties to the suit. The same result must follow if the legal representatives of one of the mortgagees have not been substituted in place of the deceased mortgagee during the pendency of the appeal in this Court.

5. The test to determine whether or not the failure to bring upon the record the heirs of one of several respondents, who has died has the effect of causing an abatement of the entire appeal or qua that particular respondent alone, is as to whether or not the appeal can be decided without, as a result of that decision, bringing into existence two decrees contrary to each other. If the result of hearing and deciding the appeal would be to bring into existence two decrees of Courts of competent jurisdiction contrary to each other, the appeal must abate as a whole. I will refer in this connexion to the case reported as Wajid Ali Khan v. Puran Singh : AIR1925All108 and to the case of Bikramajit Rai v. Darshan Das A.I.R. 1923 All. 141. I am not unaware of the fact that the decision in the last mentioned case has been modified in a Letters Patent appeal but the proposition of law laid down by the learned Judge in that case has been confirmed by the Bench that decided the Letters Patent appeal.

6. In the present case if the appeal were to be heard as against the surviving respondent and were to be allowed, the necessary consequence would be that there would be two decrees contrary to each other of equal validity. There will be the decree of the lower appellate Court denying to the plaintiff-appellant the right to redeem the mortgage, that decree having become final between the legal representatives of Sita Ram the deceased respondent, and the plaintiff-appellant. As against that decree, if the appeal in this Court were to be allowed there would be a decree of this Court granting the plaintiff-appellant a decree for redemption of mortgage as against Raj Ballaw, the surviving respondent, one of the joint mortgagees. This being the case I am compelled to hold that the appeal to this Court has abated in its entirety and I so declare.

7. The defendant-respondent is entitled to his costs of this appeal including in this Court fees on the higher scale.


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