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Shahzad Singh Vs. Babu Ram Ugrah Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in125Ind.Cas.591
AppellantShahzad Singh
RespondentBabu Ram Ugrah Singh and ors.
Cases ReferredRam Sewak v. Lambar Pande
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 4, - decree for possession--appeal by several defendants--death of some--appeal, whether abates entirely--appellate decree in ignorance of death of some of appellants, validity of. - .....previously. the decree holder's contention is that mathura singh having died, the entire appeal abated and a decree passed after automatic abatement was a nullity. the opinion of the calcutta high court w3 quoted that the decree would be a nullity, because if it were not so held there would be two conflicting decrees of two courts of competent jurisdiction, one in favour of the plaintiff and one against him, balaram pal v. kanysha majhi 53 ind. cas. 548. for one thing, the ruling is not reported in the recognized indian law reports, for another, it is in conflict with a bench ruling of this court passed as far back as 1902, ram sewak v. lambar pande 25 a. 27 : a.w.n. (1902) 171, this ruling was delivered prior to the passing of the present code of civil procedure. it laid down,.....
Judgment:

Dalal, J.

1. The plaintiff Shabzad Singh applied for the execution of a decree for possession granted by the Court of first appeal, His suit was to recover possession of 20 bighas of land which had been leased to him by Mathura Singh, Ram Ugrah Singh, Raja Ram Singh, Baldeo Singh and Balbhadar Singh. From the decree which has been put in execution the five defendant-lessors had appealed to this Court and the appeal had been decreed with the result that the plaintiff's suit was dismissed. It so happened, however, that when the decree was passed Mathura Singh had died beyond the period of limitation previously. The decree holder's contention is that Mathura Singh having died, the entire appeal abated and a decree passed after automatic abatement was a nullity. The opinion of the Calcutta High Court w3 quoted that the decree would be a nullity, because if it were not so held there would be two conflicting decrees of two Courts of competent jurisdiction, one in favour of the plaintiff and one against him, Balaram Pal v. Kanysha Majhi 53 Ind. Cas. 548. For one thing, the ruling is not reported in the recognized Indian Law Reports, for another, it is in conflict with a Bench ruling of this Court passed as far back as 1902, Ram Sewak v. Lambar Pande 25 A. 27 : A.W.N. (1902) 171, This ruling was delivered prior to the passing of the present Code of Civil Procedure. It laid down, that where several plaintiffs or defendants jointly appeal against a decree, and on the death of one of such appellants, if no legal representative of the deceased appellant is brought upon the record within limitation, it can only have the effect of causing the appeal to abate so far as the deceased appellant was concerned; it cannot have the effect of causing the appeal as a whole to abate. The learned Judges had support of a Bombay ruling in Chandrasang v. Khimabhai 22 B. 718. This view appears to have been accepted by the Legislature which enacted under Order XXII, Rule 3(2) that, where within the time limited by law no application is made under Sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned. Under r, 11 the word 'plaintiff' includes the appellant. This alteration was pointed out by Mr. Justice Sulaiman of this Court in Narain Das v. Sheo Din 91 Ind. Cas. : AIR1926All234 . The learned Judge based his judgment on the supposition that prior to the enactment of the new Code of 1908 the generally accepted rule was that the entire appeal abated. Apparently, the learned Judge's attention was not called to the ruling reported as Ram Sewak v. Lambar Pande 25 A. 27 : A.W.N. (1902) 171. The entire appeal, therefore in this Court did not abate and the decree of this Court, so far as Ram Ugrah Singh, Raja Ram Singh, Baldeo Singh and Balbhadar Singh are concerned is not a nullity. The learned Judge of the lower Appellate Court has gone further and held that as regards Mathura Singh also the appeal is effective. I do not agree with that opinion. Mathura Singh specifically appealed and the appeal as regards him having abated the decree in his favour would be a nullity,

2. Mr. Banerji on behalf of the respondents pleaded that a decree against Mathura Singh cannot be executed against his sons who were members of a joint Hindu family at the time of the execution of the lease. That is a point still to be determined. On the other hand it was argued on behalf of the plaintiff-appellant that the decree being a joint one it should be executed against every one of the defendants.

3. For the reasons given above such a position is not tenable. The plaintiff may execute the decree as against Mathura Singh for whatever it may be worth.

4. I set aside the decrees of both the subordinate Court B and remand the application for execution of Shahzad Singh to the executing Court to treat it as an application for execution against Mathura Singh alone. His legal representatives will be permitted to put forward objections to the execution. The appeal is dismissed as against Ram Ugrah Singh, Raja Ram Singh, Baldeo Singh and Balbhadar Singh. They shall receive their costs of all the Courts.


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