(1) In this appeal a preliminary objection has been raised on behalf of the respondents that the appeal has abated. An application under Order 22 rule 4, read with section 151, Code of Civil Procedure (Civil Miscellaneous No. 1746/C of 1959) was filed in this Court on behalf of the appellants on the 25th of August 1959 with prayer that Mst. Natho having died, her sons and heirs Gulabal Singh and Harnarain be brought on the record in her place. In this application it is stated that the lady had died about three years earlier in village Bibipur. Tehsil Jind; Bibipur is sated to be about 20 or 22 kos away from the village of appellants.
It is also alleged that Mst. Natho was only 40 years of age at the time of her death and no news of her illness or of her demise was ever received by the appellants. Being ignorant of her death, was alleged to be a sufficient ground for extending the period of limitation for filling this petition. On the 9th of September 1959 notice was issued to the counsel for the opposite party by S. B. Capoor, J. On 30-9-1959 Mr. D. N. Aggarwal for the appellant-petitioners and Mr. Shamair Chand for the respondents were present when Shamsher Bahadur J. ordered the application for setting aside abatement to be heard along with the appeal. The position therefore is that Mst. Natho is not represented in this appeal, her legal representatives having not yet been brought on the record.
(2) Mr. D. N. Aggarwal tries to meet the objection raised by the counsel for the respondents that ignorance of the death of the respondent is by itself a good ground for extending time for the application for setting aside the abatement. In the alternative he contends that the appeal cannot abate as a whole and it should be disposed of on the merits as against Mst. Tehro and Mst. Natho, the other respondents. In my opinion both these contentions are devoid of merit.
(3) On the death of a respondent it is incumbent on the appellant to cause the legal representatives of the deceased to be made a party and if no application for this purpose is made within the time limited by law, the appeal must abate as against the deceased. Under article 177 of the Indian Limitation Act a period of ninety days is allowed for making such an application and the terminus a quo is the date of the death of the deceased respondent.
Even if the appeal has abated the appellant is given another change of approaching the Court for an order to set aside the abatement, and if it is proved that he was prevented by any sufficient cause from continuing the appeal, the Court shall set aside the abatement on such terms as to costs or otherwise as it thinks fit. Under article 171 of the Indian Limitation Act a period of sixty days is fixed for making such an application and the terminus a quo for this purpose is the date of the abatement.
It would thus be obvious that the knowledge of the appellant about the death of the respondent does not figure anywhere in these two articles, and therefore prima facie the date of the knowledge of the death would not be relevant for considering the question of limitation. But then by virtue of sub-rule (3) of Order 22 rule 9. (Code of Civil Procedure), the provisions of Section 5 of the Indian Limitation Act have been held to be applicable to applications filed under sub-rule (2).
It is clear, from the application filed by the appellants themselves, that their application for setting aside the abatement is hopelessly barred by time, and if time is to be extended under section 5 of the Indian Limitation Act, the appellant must explain the delay of each individual day after the expiry of the period of limitation prescribed by article 171 of the Indian Limitation Act.
The application does not contain any explanation in this connection; even the date of the knowledge of the death of Mst. Natho is not mentioned in it nor as to how long after such knowledge the present application was filed in this Court. But this apart, unless the ignorance of the death of Mst. Natho was due to some events beyond the control of the appellants, in my view it would not constitute a sufficient cause.
It was of the appellants to state facts for the purposes of establishing that the ignorance was not due either to carelessness or want of diligence on the part of the appellants. It is obvious that the parties are related to each other and it is difficult to believe that the appellants were really ignorant of the death of Mst. Natho, more so when the villages of the parties are not very far from each other, being only about 20 Kos away.
(4) In so far as the alternative contention urged by Mr. D. N. Aggarwal is concerned, the learned counsel has merely stated that he would be entitled to claim the portion of the land belonging to the other two respondents who are already on the record if he succeeds in his appeal and may only be deprived of the land which belonged to the deceased. In this connection it is to be borne in mind that the suit filed by the present plaintiff's appellants was for a declaration that the ex parte decree obtained against the plaintiff's on the 8th of October 1948 was ineffective, void and not binding on them.
It has not been shown how this declaration can be granted as against the two respondents who are on the record and the same decree to be held effectively binding on the plaintiff's so far as the deceased is concerned. The learned counsel has not cared to refer me to any decided case, reported or otherwise, in support of his contention. The test whether a particular appeal abates as a whole on account of the death of one of the respondents is to see whether it can or cannot proceed in the absence of the legal representatives of the deceased, and this must depend upon the nature of each case.
It is not easy to lay down a rigid or hard and fast rule of general application. if the suit or action, out of which the appeal has arisen, could have been instituted without impleading the dead person, then his death would apparently affect only the interests which he had in the litigation and it cannot prevent the trial or adjudication of the rest of the claim. This rule, however, is not capable of solving the problem in every case.
The test, not infrequently applied, is whether if the appeal against the existing respondents is allowed, then would it give rise to two contradictory decrees in the same litigation and with respect to the same subject-matter. Courts normally do not make two inconsistent decrees about the same right, and in order to avoid conflicting decrees it is in the interest of justice to favour abatement of such an appeal as a whole. In case, however, the success of the appeal is not calculated to give rise to such a contingency, then the Court would be fully competent to hear and determine an appeal as between the parties who are actually present before it.
It appears to me that in the instant case, the interest of all the respondents in the decree, which was secured against the plaintiff-appellants in 1948 and which decree is now being sought to be set aside, were inseparable and dismissal of the present as against one respondent and its acceptance as against the others is sure to give rise to inconsistent and contradictory decrees. Mr. Aggarwal has not been able to show any material on the record that this is not so.
Indeed, he did not even make an attempt to argue that the decree which is sought to be set aside conferred any distinct and separable rights on the decree-holders. To pass two decrees in the present case, in one making the previous ex parte decree binding on the appellants and in the other to declare the previous decree to be not binding on the appellants, would inevitably and clearly result in contradictory decrees of this Court with respect to the same subject-matter. it is, therefore, not possible for me to hold that this appeal should abate only partially and not in its entirety.
(5) For the reasons given above this appeal fails and is hereby dismissed, but in the peculiar circumstances parties are left to bear their own costs in this Court.
(6) Appeal dismissed.