1. Shri Jagat Ram, one of the three defendants, who had filed this regular second appeal in the year 1962, died 5/6 years ago and no application for impleading his legal representatives or for setting aside the abatement was filed within the time allowed by law. The deceased's son Kishan Chand has now filed Civil Miscellaneous Application No. 1778-C of 1972 under Section 5 of the Limitation Act and Civil Miscellaneous Application No. 1179-C of 1972 under Order 22, Rule 9, read with Section 151, Civil Procedure Code, for the condonation of the delay for being brought on the record as the legal representative of the deceased.
2. Shri Gupta, the learned counsel for the civil miscellaneous petitioner, frankly concedes that he cannot satisfactorily explain or justify the delay of more than five years in filing these miscellaneous applications. He, however, argues that no abatement of the appeal has taken place as the two surviving defendants could file the appeal without joining the deceased and that in the event of their appeal succeeding, the benefit could also be given to the deceased or his legal representatives in view of the provisions of Order 41, Rule 4 of the Code of Civil Procedure. This rule runs as follows:--
'4. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.'
In support of his argument, Shri Gupta relies on the recent Supreme Court decision in Mahabir Prasad v. Jage Ram, AIR 1971 SC 742, which had followed an earlier Supreme Court ruling in Rattan Lal Shah v. Firm Lalmandas Chhadamma Lal, (1970) 1 SCR 296=(AIR 1970 SC 108). It may further be observed that another Supreme Court ruling in Rameshwar Prasad v. Shyam Beharilal Jagan Nath, (1964) 3 SCR 549=(AIR 1963 SC 1901), was also considered at length by the Hon'ble Judges of the Supreme Court but was found to be distinguishable from the facts in the case of Mahabir Prasad AIR 1971 SC 742 and Rattan Lal Shah, AIR 1970 SC 108 (supra).
3. This suit for the possession of the land in dispute was filed by the plaintiff-respondent in 1960 against the three appellants who are real brothers. The plaintiff-respondent had alleged that the land had been given to his as a part of his holding by the Consolidation Authorities and that the appellants had taken its forcible possession about six years prior to the filing of the suit. The defendants-appellants had pleaded that the land was evacuee property and had been allotted to them by the Rehabilitation Authorities and that the Civil Courts had no jurisdiction to try the suit. Their plea had succeeded in the Trial Court and the suit had been dismissed with costs. An appeal filed by the plaintiff-respondent was, however, successful in the Court of the Senior Sub Judge at Gurdaspur. All the three defendants had, therefore, joined in filing this second appeal. Order 41, Rule 4, of the Code of Civil Procedure would be applicable only to a case where there are more plaintiffs or more defendants than one having grounds common to all of them and the appeal was filed by only some of these numerous plaintiffs or defendants having common cause or interest in the litigation. Where all the plaintiffs or all the defendants having a common cause join in filing the appeal, Order 41, Rule 4 of the Code would have no application. This was clearly so held by the Supreme Court in Rameshwar Prasad's case AIR 1963 SC 1901 (supra). The following observations of the Hon'ble Judges could be reproduced here with advantage:--
'The provisions of Order 41, Rule 4 do not override the provisions of Order 22, Rule 9, Civil Procedure Code. Such a question cannot arise. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order 41, applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. he can take advantages of this provision, but he may not. Once an appeal has been filed by all the appellants the provisions of Order 41, Rule 4 become unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of Rule 9 of Order 22 and those of Rule 4 of Order 41. Civil Procedure Code. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.................
An Appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22, Rule 3.'
4. As all the three defendants had joined in filing this appeal and no one having a common cause with them had been left out or impleaded as a respondent, the Supreme Court rulings sin the cases of Mahabir Prasad AIR 1971 SC 742 and Rattan Lal Shah, AIR 1970 SC 108 would have no application. Our case is fully covered by the Supreme Court ruling in Rameshwar Prasad's case AIR 1963 SC 1901. The decree under appeal so far as Jagat Ram deceased is concerned has become final. Jagat Ram's appeal has, therefore, to be dismissed as it has abated. The continuance of the appeal by the other two surviving appellants would lead to the passing of conflicting or contradictory decrees in the even of their appeal being accepted. As such inconsistent or contradictory decrees are to be avoided, the appeal must be taken to have bated as a whole.
5. I, therefore, dismiss the Civil Miscellaneous Applications Nos. 1778-C and 1779-C of 1972 and declare that the regular second appeal has abated as a whole. The appeal is accordingly dismissed but the parties are left to bear their own costs.
6. Appeal dismissed.