I.D. Dua, J.
(1) This order will dispose of Regular First Appeals Nos. 71 of 1955 and 43 of 1956 along with the cross-objections preferred by the respective respondent in both these appeals.
(2) In Regular First Appeal No. 71 of 1955, a preliminary objections has been raised on behalf of the respondent Gurnarain etc., by Shri Tuli that the appeal has abated in to on account of the death of Mukand Lal respondent on 16-12-1956 for bringing on record of whole legal representatives a petitioners was filed as late as 6-61957. Time both for bringing on record his legal representatives as well as for setting aside the abatement has according to Shri Tuli expired by the middle of May, 1957. The only reason for this delay given by the appellant is want of the appellant resided about 300 miles away from his place of residence. Shri Tuli has also laid stress on the submission that according to the appellant he came to know of Mukand Lal's death from the notice of the application filed by Shri Ruli's client in the cross-appeal for bringing on record the legal representatives of the deceased by the exact date of knowledge thus acquired has also been disclosed. It is emphasised that the summoned on this application. should have been served on him on 7-5-1957 and even form that date nearly a month was taken in presenting the petitioners to this Court. Under S. 5 of the Limitation Act it is for the appellant to explain each individual day's delay for securing benefit of extension of period and such explanation according to Shri Tuli is wanting. In support of-the objection our attention has been draw into Jagar v. Mst. Natho AIR 1960 Punj 207 Durga Dass v. Des Raj 63 Punj LR 163 Firm Dittu Ram Evedan v. Om Press Co., Ltd., ILR (1960) Punj 935: (AIR 1960 Punj 335 FB) and the State of Punjab v. Nathu Ram AIR 1962 SC 89. It has also been contended that the decree being joint and indivisible against all the defendants abatement of the appeal as against Mukand Lal deceased must result in its total abatement as against all the respondent.
(3) Shri Awasthy has in reply submitted that the appellants application for bringing on record that legal representatives of Mukund Lal deceased and for setting aside the abatement had been granted subject to all just exception on 24-6-1957 by a learned Singly Judge of this Court. After that date this appeal came up for hearing on two occasions before two different Benches and since the respondent did not urge this objection at that stage it must be deemed to have been waived. He also laid emphasis on the absence of nay ocurnter-affidavit controverting the appellant's affidavit on the point. He has in this connection referred us to the decree-sheet at p. 175 printed paper-book. According to his submission decree was really passed only in favour of the plaintiffs with the result that the absence of Mukand Lal defendant No. 3 from the array of respondent in this appeal cannot affect the adjudication of the appeal on the merits so far as the remaining parties are concerned. According to him, there was a partial dissolution of the firm and defendants Nos. 2 to 6 has as a result thereof quitted the partnership and they were merely impleaded as proper parties and not a necessary parties.
(4) Shri Tuli has controverted this submission and has referred to paragraph 13 of his plaint at page 5 of the printed paper-book, where it is stated that the rights of defendants Nos. 2 to 6 are similar to those of the plaintiffs and defendants No. 3 and 6 could not joint the suit due to illness and defendants Nos. 2, 4 and 5 could not join due to theory remaining outside and that the suit has been filed with their consent and for there benefit. He has also pointed out that this appeal was heard only in part on earlier occasions but since both the he and Shri Awasthy were not the original counsel in the case they did not know the record fully and even Shri Awasthy was not aware of this application having been presented after the expiry of limitation. He has pointed out that originally Om Sarup was represented by Shri P. C. Pandit (now Hon'ble MR. Justice P. C. Pandit and Gurnarain by Shri D. K. Mahajan (now Hon'ble Mr. Justice D. K. Mahajan) and that it was only during the course of hearing when it was discovered a District Judge has not been removed from the guardianship of one of the minor parties that he case was adjoined for taking suitable steps in this connection. It is strongly urged that there has abated merely because no an ealrier occasion this objection was not pressed and adjudication claimed.
(5) In our opinion on the facts and Circumstances of this case there is not waiver of the objection disentitling the respondents from pressing it before us. The question whether an appeal has abated on account of the death of a necessary party whose legal representatives have not been brought on the record within the prescribed period and where the abatement has also been sought to be set aside within the period prescribed has to be answered by reference to the provisions of O. 22 Code of Civil Procedure Rules 3 and 4 of this Order are mandatory and I am extremely doubtful if the Court can ignore the automatic abatement merely because an objection to this effect has not been raised by the party affected on an earlier occasion. Where the respondent dies and no application is made for causing his legal representatives to be brought on the record with in the time there is no question of any period for raising any objections to such abatement. But in this case before us even otherwise the omission to claim adjudication on this point on earlier occasion can scarcely amount to waiver. On the earlier occasion it may be pointed out one the apple was not heard at all because the documents of the respondent Gurnarain etc. were for some reason or the other not included by the office of this Court in the printed paper-book and as the second occasion the basic document in original traceable. An enquiry was directed by us but it appears that even up till today that document has not been traced.
(6) The only point that seems to me to arise the can it be said that when an ex parte order has been passed granting a time barred application subject to just exceptions then if the opposite party does not raise the objection at the earliest possible opportunity the order should be deemed to have become final and binding on him? The learned counsel for the quoted any principle in support of his contention. An ex parte order of this nature in my opinion even without the qualifying clause must always be deemed to be subject to just exceptions and the opposite party to whose prejudice it is passed ex parte is always entitled to object to it. Shri Awasthy has not drawn our attention to any part of the record showing that the respondent has been given formal notice of this application or that any order was passed after hearing the opposite party. That being so as at present advised I would be disinclined to shut out Shri Tuli from objecting to the ex parte by time and there being no sufficient ground for the delay, should finally be disallowed.
(7) I, however, cannot help expressing the view that in cases where such application are prima facie barred by time, it was always desirable to pass final orders after giving notice to the opposite side so that the point of limitation affecting the decision of the appeal on the merits is decided at the earliest stage and before the parties incur expenses in getting the record printed. I may appropriately quote at this stage some instructive observations of the Privy Council from the judgment in Krishnasami Parilkondar v. Ramasami Chettiar ILR 41 Mad 412: (AIR 1917 P C 179) where an ex parte order had been passed by the High Court while admitting an appeal excusing delay. The order was in the following terms:
'Delay excused in the Circumstances and the appeal admitted.'
The Judicial committee while disapproving this practice observed as follows:
'But while this procedure may have the sanction of usage, it is manifestly open to grave objection. It may as in this case lead to a needless expenditure of money and an unprofitable waste of time, and thus create elements of considerable embarrassment when the Court comes to decide on the question of delay. Their Lordships therefore desire to impress on the Court in India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal.'
The Judicial Committee again in Sunderbai v. The Collector of Belgaum ILR 43 Bom 376: (AIR 1918 P C 135) repeated the importance of the observations to be attracted to the case in hand as well. It is however unnecessary to say anything more on this occasion.
(8) In so far as the merits of this application are concerned it was pointed out in Jagar's case, AIR 1960 Punj 207 that on the appellant to cause the legal representatives of the deceased to be made a party and if no application for the purpose is made within the time limited by law the appeal must abate as against the deceased. Under Article 177 Indian Limitation Act 1908 (which Act governs the present case) a period of 90 days is allowed for making such an death of the deceased respondent. When the appeal his abated even the n the appellant is given another chance of approaching the Court for an order to set that he was prevented by any sufficient cause from continuing the appeal, the Court normally sets aside the abatement on such terms as to costs or otherwise as it thinks fit. For this purpose Article 171 of the this purpose of the date of abatement, It is thus obvious that knowledge of the death of the deceased result that primate facie the date of the knowledge of the death would not be a relevant consideration in determining the question of limitation of these two application. rule 9(3) of Order 22. Code of Civil Procedure of course provides for the applicability of section 5 Indian Limitation Act to the application filed under Rule 9(2) but then in order to invoke the assistance of section 5 it is well recognized that each individual day's delay after the expiry of the period of limitation has to cover the whole of the period of delay. In the case in hand for reasons best known to the appellant it has not even been disclosed on which precise was acquired and why the necessary application could not be presented to this Court earlier. We have therefore no alternative except to disallow the application for setting aside abatement and for bringing on record the legal representatives of Mukund Lal deceased. This petitioners is accordingly rejected.
(9) This brings mw to the question of the effect of rejection of this application. Now according to the Code of Civil Procedure where the legal representatives of a deceased respondent are not brought on the record within the prescribed time the appeal abates only qua the deceased. The Code does not provide for the abatement of the appeal as against the respondents who are on the record. The question of the effect of partial abatement on the appeal against the other respondent has thus to be determined by the general principles. If the case is of such as nature that he absence of the legal representatives of the deceased from the record prevents the Court from hearing the appeal as against the others then the appeal as against the others, then the described to result in total abatement. But this question must it appears to me depend from its very nature upon the facts of each case and it is scarcely possible to formulate a rule of general application which can in all cases serve as rigid formula for the Court to determine when it can or cannot proceed to dispose of an appeal as against the existing parties on the record. The test has been put in various forms but it is unnecessary to embark upon them in detail.
Suffice it to say that the difficulty facing the Court generally arises when the decree appealed against is joint The test in such a contingency broadly put is that if the decree appealed from against the surviving respondent in case of success of the appeal becomes ineffective, in the sense that it cannot be successfully executed or if by allowing the appeal two contradictory decrees in respect of the rolls of the Court in the same litigation then the Court will not proceed with the appeal. It is a matter of common sense that the Court should not be called upon to make two inconsistent decrees about the same property and making of conflicting decrees should be avoided. This test covers cases when the joint decree is indivisible. In such a case the decree appealed from becomes final as against the deceased respondent with the result that as against him the appellate Court cannot modify the decree either directly or indirectly. We have there fore to consider if the decree appealed from in the present case indivisible.
(10) After bearing Shri Awasthy and Shri Tuli we are satisfied that the decree in question is joint and in indivisible and once it is upheld as against Mukand Lal deceased it is difficult to modify it as against others without giving rise two conflicting inconsistent or contradictory decrees in respect of the same subject-matter. The view taken by me is supported by the ration inter alia of AIR 1962 SC 89,. RFA 71 of 1955 accordingly fails and it dismissed.
(11) In so far as cross-objections in R. F. A. No. 71 of 1955 are concerned, Shri Tuli has submitted that in view of two Bench decision of this Court in Mst. Bakhtawari v. Sadhu Singh ILR (1959) 1 Punj 900: (AIR 1959 Punj 558) and 63 Pun L R 163 they do not survive. It is in the Circumstances unnecessary to deal with the cross-objections.
(12) In so far as R. F. A. No. 43 of 1956 is concerned it merely relates to the orders of the Court below disallowing costs. As is well settled costs are in the discretion of the Court and therefore unless the discretion can be said not to have been juridical exercised or a matter of principle is involved the Court of appeal as a matter of practice does not interfere with such orders. In the present case it is not shown that the order is tainted with nay infirmity justifying interference on appeal in my opinion in view of the dismissal of R. F. A. No. 71 of 1955 it would not be possible to adjudicate upon them. It may be pointed out that this appeal was transferred from the Court of the learned District Judge Hoshiapur to this Court be learned Single Judge on the 2nd February 1956 at the instance of Shri Om Sarup. In the application under section 24 and 151 and Order 13 Rule 10 Civil Procedure Code dated the 22nd December 1955 it was averred inter alia that in order to avoid two conflicting appellate judgments against one judgment of the learned Senior Subordinate Judge it was just and fair that both the appeal are heard together by this Hon'ble cot. It is not urged before us that the cross-objection in R. F. A. affecting the decision of this Court dismissing. R. F. A. No. 71 of 1955. In the result these cross-objections also fail and are hereby dismissed.
(13) The final result therefore is that both the appeals and the cross-objection are dismissed but without any order as to costs.
S.B. Capoor, J.
(14) I agree.
(15) Appeals dismissed.