Prakash Narain, J.
(1) Narain Pershad and two others, including Mrs. Uma Pershad, filed this appeal against Naresh Chandra on April 19, 1967 against the judgment and decree of a Sub Judge 1st Class, Delhi, decreeing Naresh Chandra's suit for possession of property tearing No. 70, Kucha Sukhanand, Dariba Kalan, Delhi, and recovery of Rs. 293.75 on account of arrears of rent (as against only Narain Pershad and Mrs. Uma Pershad) and recovery of Rs. 236.25 on account of damages for use and occupation. Mrs. Uma Pershad died at Delhi on February 29, 1976 leaving behind as her heirs three sons and a daughter. The three sons are said to be Puran Pershad, Mahadev Pershad and the first appellant, Narain Pershad. The daughter's name is Smt. Inder Vati, who is the wife of Shri Suresh Pal and is living at Jullundur. The respondent Naresh Chandra, moved C.M. 409 of 1978 on July 17, 1978 pointing out that Mrs. Uma Pershad, the second appellant, died on February 29, 1976 and since her legal representatives had not been imp leaded as appellants within the time permitted by law the appeal has abated. Notice of this application was given to counsel for the two surviving appellants on August 10, 1978. A reply was filed to this application on behalf of the first and the third appellant. An application, C.M. 505 of 1978, was then preferred by the two surviving appellants on August 29, 1978 under Order 22, Rule 3 Civil Procedure Code praying that Puran Pershad, Mahadev Pershad and Smt. Inder Vati be imp leaded as appellants being legal representatives of Mrs. Uma Pershad, Narain Pershad being already there. An application, being C.M. 504 of 1978, was also moved invoking Section 5 of the Limitation Act praying for condensation of delay in filing the application under Order 22, Rule 3, Civil Procedure Code All these applications were ordered to be listed for hearing along with the appeal. We have heard counsel on their applications before proceeding to bear them on merits of the appeal because the first question to be decided is whether the appeal has abated and if so, whether the abatement is to be set aside and the legal representatives of Mrs. Uma Pershad imp leaded as appellants.
(2) The facts of the case may first be briefly stated. Late Uma Pershad took the premises in suit on rent from R. S. Pyare Lal on a monthly rent of Rs. 33.75. R. S. Pyare Lal died on July 8, 1942 leaving behind only one son and heir R. S. Adishwar Lal. Uma Pershad consequently became a tenant under R. S. Adishwar Lal. The tenancy of Uma Pershad is said to have been terminated by R. S. Adishwar Lal by a notice dated August 20, 1947. Uma Pershad, however, continued to occupy the premises as a statutory tenant as he had protection against eviction on account of the rent restriction laws or Rent Control Acts which were promulgated from time to time. R. S. Adishwar Lal died on April 16, 1950. His properties were inherited by his two sons, Sheel Chandra and Naresh Chandra and their mother, Smt. Kiran Dwi. As a consequence of an alleged partial family partition the property in suit is said to have fallen to the share of Naresh Chandra. Smt. Kiran Devi is claimed to have executed a relinquishment deed in favor of her sons on March 31, 1953. Uma Pershad is said to have died on June 18, 1964. Thereafter the premises were occupied by Mrs. Uma Pershad and one of her sons, Narain Pershad. Mrs. Nirmala Pershad wife of Narain Pershad, is occupying the premises by virtue of her being the wife of Narain Pershad. Naresh Chandra claiming possession contended that Narain Pershad, Mrs. Uma Pershad and Mrs. Nirmala Pershad had no right to occupy the premises on the death of the statutory tenant, Uma Pershad, and in consequence filed a suit for possession of the property, recovery of arrears of rent due from Uma Pershad till the date of his death and damages for use and occupation for the subsequent period as against the three persons in occupation of the property. This suit, as already noticed, was decreed. According to the plaint the defendants/appellants were sued as occupants of the premises of which possession was sought. The claim for damages for use and occupation was also on the same basis. The defendants/appellants sued for arrears of rent due from Uma Pershad were Narain Pershad and Mrs. Uma Pershad being the heirs of Uma Pershad. In the written statement filed by the defendants/appellants the plea that was taken was that Narain Pershad and Mrs. Uma Pershad succeeded to the tenancy rights of Uma Pershad and became tenants under the respondent/plaintiff, Naresh Chandra. Regarding Mrs. Narain Pershad the plea was that as wife of Narain Pershad the first defendant/appellant she was living with him in the house in suit. In terms, thereforee, the stand of Narain Pershad and Mrs. Uma Pershad was that they were the tenants of Naresh Chandra and so, the suit for dispossession was not maintainable. It was specifically pleaded that the defendants/ appellants were liable to pay rent and not damages. The service of a notice of termination of tenancy on Uma Pershad was disputed and it was claimed that Uma Pershad had become a statutory tenant under Naresh Chandra which tenancy was inherited by Narain Pershad and Mrs. Uma Pershad on the death of Uma Pershad. It is in this state of the pleadings that the question of abatement and impleading of legal representatives of Mrs. Uma Pershad has to be considered.
(3) Order 22 of the Code of Civil Procedure deals with situations arising out of one or more parties to a suit or an appeal dying during the pendency of such proceedings. Rule 1 lays down that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 lays down that where there are more plaintiffs or defendants than one and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the suit shall proceed after recording of the fact of death at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. Rule 3 under which C.M. 505 of 1978 has been moved reads as under :
'3.(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survive, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) 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, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.'
(4) Rule 4 reads as under :
'4.(1) Where one of two or more defendants dies and the right to sue does not survive against 'the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defense appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limit by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963, and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified thereforee in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.'
(5) Rule 9 (2) and (3) of Order 22, Civil Procedure Code. reads as under :
'9.(2) The plaintiff of the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement of dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Limitation Act, 1877, apply to applications under sub-rule (2). Explanationn- Nothing in this rule shall be construed as barring, in any later suit, a defense based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.'
Rule 11 of Order 22, Civil Procedure Code. provides that Order 22 would apply to appeals also and, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent and the word 'suit' an appeal.
(6) We may notice that there is no application before us under Rule 9 of Order 22 Civil Procedure Code. So, one of the questions that will arise for consideration is whether the application for impleading the legal representatives of Mrs. Uma Pershad is within limitation, as provided by the Indian Limitation Act, and it can be said that the appeal as preferred by her jointly with her son Narain Pershad has not abated.
(7) The relevant provisions of the Limitation Act may now be noticed. Section 3 of the Act lays down that subject to the provisions contained in Sections 4 to 24 every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defense. The period of limitaton according to Section 2(j) means a period of limitation prescribed for any suit, appeal or application by the Schedule to the Act, Section 5 lays down that any appeal or any application, other than an application under any of the provisions of Order Xxi of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. The relevant articles are given in the Third Division of the Schedule. Article 120 prescribes a period of 90 days from the date of the death of the plaintiff, appellant, defendant or respondent as the case may be, for moving an application under the Code of Civil Procedure to have the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party. Article 121 provides a limitation of 60 days for moving an application to set aside the abatement. The period of 60 days is to run from the date of abatement. Article 137 provides a period of limitation of 3 years from the date when the right to apply accrues to move an application for which no period of limitation is provided elsewhere in the third Division.
(8) On behalf of the applicants it is contended that one of the legal representatives of Mrs. Uma Pershad is Narain Pershad and he is already on the record as the first appellant and, thereforee, he represents the estate of Mrs. Uma Pershad. The contention is that in such circumstances it was not necessary to implead the other heirs and legal representatives of Mrs. Uma Pershad but by way of abundant caution C. M. 505 of 1978 has been moved. The second contention raised is that inasmuch as Naresh Chandra has pleaded that the appellants/defendants were joint tort feasers no legal representative of Mrs. Uma Pershad is required to be brought on record, the liability of joint tort feasers being joint and several.
(9) On behalf of the respondent/plaintiff it is submitted that the appeal, as filed by Mrs. Uma Pershad, has at least abated in terms of the provisions of clause (2) of Rules 3 of Order 22 of the Code of Civil Procedure and inasmuch as the defendants appellants were joint tort feasers and the decree against them as such cannot be split up, the entire appeal must be deemed to have abated. There being no application for setting aside the abatement the appeal should be recorded as having abated and consigned to record. It has been further submitted that in the absence of the legal representatives of Mrs. Uma Pershad if the appeal is allowed to be continued by Narain Pershad and Mrs. Narain Pershad even if the appeal is dismissed, the decree can be frustrated by the heirs of Mrs. Uma Pershad, the decree being joint and indivisible.
(10) On looking at the plaint and the written statement there is no doubt that the case has been fought by the parties on the basis of joint liability of the defendants in the suit. The plaintiff/respondent had treated the defendants as joint tort feasers. The defendants themselves had taken up the plea that they had inherited the statutory tenancy which had subsisted in favor of Uma Pershad. The question, thereforee, has to be answered in the light of these pleadings.
(11) Narain Pershad is no doubt a legal representative of Mrs Uma Pershad. There is, however, nothing on record to show that he represents the entire estate of Mrs. Uma Pershad.
(12) Mr. Annop Singh, learned counsel for the applicants (the surviving appellants) has relied on Bishan Das v. Ram Lablaya and others, A.I.R. 1916 Lah 133 to contend that the appeal can be continued by the surviving appellants particularly Narain Pershad who is one of the legal representatives of Mrs. Uma Pershad and as the appellants/defendants have been held to be joint tort feasers. In the judgment cited before us the defendants had been sued as joint tort feasers for recovery of Rs. 4000 as compensations for the death of one Ladha Mal and Rs. 1000 as representing the cash and value of goods belonging to Ladha Mal but alleged to have been appropriated by the defendants after his death. The suit had been brought by the minor son of Ladha Mal and a brother of Ladha Mal. The allegation was that defendants had entered into a conspiracy to murder Ladha Mal in which nefarious design they succeeded and after Ladha Mal's death they robbed him of his valuables. The District Judge dismissed the claim for compensation but decreed the claim for Rs. 1000. On appeal, the Additional Divisional Judge upheld the claim for compensation to the extent of Rs. 2000 as well as the decree for Rs. 1000. One of the defendants appealed to the High Court as the other defendant had died during the pendency of the appeal in the lower appellate court. An objection was taken that the whole of the suit had abated on the death of Badri Nath, the deceased defendant, and inasmuch as his legal representatives were not brought on record the appeal was incompetent. A Division Bench of that Court observed that the liability of joint tort feasers is joint and several and consequently on the death of one the cause of action survives against the other. In our opinion, this decision does not help. The principal question which arises for determination in the present litigation is whether on the death of Uma Pershad his heirs succeeded to the statutory tenancy. Whatever may be the state of law today the fact is that on the state of law then existing it was held that they did not succeed to the statutory tenancy and so, did not become tenants under Naresh Chandra. The occupation of the original appellants was held to be not under any right and that is why the decree for possession was passed against them. If this decision was to be reversed in appeal then all the heirs of Uma Pershad would have a joint and indefeasible right in the tenancy. Their case is not of joint tort feasers only but of heirs of Uma Pershad and a right developing on them.
(13) We have already noticed that no application has been moved to set aside the abatement. Thus, the appeal as filed on behalf of Mrs. Uma Pershad has abated. The question is whether the appeal can be continued by the remaining appellants even if the plea regarding joint tort feasers is taken into consideration, whatever may have been the view expressed by the Lahore High Court way back in 1916 as far as the law today is concerned, it is settled that a joint decree, which is not capable of being read in separate parts as far as separate persons are concerned, is one decree and if it can be frustrated by any of the heirs of the parties which has died and who has not been brought on record then the entire proceedings come to an end by abatement.
(14) Several decisions have been cited in support of this contention. It is not necessary to notice all of them. We, thereforee, propose to notice only some of them.
(15) In Sri Chand and others v. M/s. Jagdish Pershad Kishan Chand and others, Air 1966 S.C. 1427, it was held that where the decree under appeal is against the appellants proceeding on ground common to all and the appeal abates with regard to one of the appellants, the effect is that the decree becomes final as far as that appellant is concerned and so, the entire appeal abates. The decree having become final against Mrs. Uma Pershad and her heirs, it will be very anomalous situation if the High Court was to accept the appeal and Narain Pershad in his personal capacity will be able to stay in the house whereas in his capacity as heir of Mrs. Uma Pershad he has to be thrown out of it.
(16) The principle enunciated in the Lahore case about the liability of joint tort feasters being joint and several generally applicable to wrongs of quasi criminal character was an invention of English Common Law and has been extended to not only prosecutions but actions for trespass. But as observed by the Supreme Court in Official Liquidator, Supreme Bank Ltd. v. P. A. Tendolkar (dead) by L. Rs. and others, : 3SCR364 , the maxim actio personals moritur cum persona would not be applicable to actions based on contract or where a tort feaser's estate had benefited from a wrong done. Its application has been restricted to actions for damages for defamation, seduction, inducing a spouse to remain apart from the other and adultery. This principle has not been extended even to cases involving breaches of fiduciary duties and surely cannot be extended to cases where inheritance of statutory tenancy is claimed or disputed.
(17) It has been contended that as one of the legal representatives of Mrs. Uma Pershad, Narain Pershad is already on record as an appellant, the period of limitation within which an application has to be filed for impleading the legal representatives of Mrs. Uma Pershad would be three years under Article 137 of the Schedule to the Limitation Act and so, the question of abatement does not arise. Reliance is placed on Smt. Kailash Kapoor and another v. Naresh Chandra Misra, : AIR1972Delhi253 and Jagat Narain and others v. Sita Ram, . In both these cases the point in issue was that only some of the legal representatives were brought on record within the prescribed period of limitation and to bring on record the remaining legal representatives an application was made out of time. On consideration of the second application which was held to be made in good faith it was held that the question of abatement did not arise because some of the legal representatives brought on record within limitation effectively represented the estate of the deceased party. In the Himachal Pradesh case the sole defendant had died during the pendency of the suit. An application was made by the plaintiff to bring the defendant's wife on record as his legal representative. This application was made within time. The wife had contended that the suit had abated inasmuch as the mother of the deceased defendant was alive and under the Hindu Law was also an heir to the estate. She not having been imp leaded within limitation the suit could not proceed. The plaintiff then made an application for impleading the mother also and pleaded that the omission to bring the mother on record earlier was due to the fact that the plaintiff was not aware of the mother being alive. In these circumstances as it was held the right to sue survived and as one of the legal representatives had already been brought on record, there was no question of abatement and for bona fide reasons the delay in impleading the mother should be condoned.
(18) In the case of this court which has been relied upon, T. V. R. Tatachari, J. (as the learned Chief Justice then was) enunciated the rule that where after a diligent and bona fide enquiry regarding the legal representatives of a deceased party to a suit or appeal, all the known legal representatives have been brought on record within the prescribed period of limitation, the action cannot be said to abate if subsequently it comes to be known that there were some more legal representatives who were not brought on record for want of knowledge about them. In such a case a subsequent application for bringing the other legal representatives on record is not governed by the 90 days' rule, but is governed by the limitation of three years, as provided for under Article 137 of the Limitation Act.
(19) In the case before us the situation is entirely different. For one, no effort was made whatsoever by the surviving appellants who had knowledge of who were the legal representatives of Mrs. Uma Pershad to make an application within time ; and secondly, the application, C.M. 505 of 1978, was made only after the respondent had moved the application, C.M. 409 of 1978, for dismissal of the appeal on account of abatement. There is no bona fides involved and no question of having imp leaded some of the legal representatives earlier. Furthermore, as has been held by this court in Invest Import Co. v. Watkin Mayor Co., 1978 Raj LR 249, if a necessary party is not imp leaded in the appeal and the decree against the said party becomes final, then the appeal by one of defendants is incompetent. In the present case the decree against Mrs. Uma Pershad has become final by virtue of the fact that no application to set aside the abatement qua her has been moved. Though Narain Pershad is one of the legal representatives of Mrs. Uma Pershad, appeal by him and his wife cannot be continued as there is likelihood of a conflict of decisions and two decrees contradictory to each other cannot be permitted to stand in respect of the same list. Order 41, Rule 4 Civil Procedure Code lays down that 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 favor of all the plaintiffs or defedants, as the case may be, but it is necessary that all the original plaintiffs and/or all the original defendants must be party to the appeal. If any one of them is either not imp leaded or ceases to be a party then the appeal or suit becomes defective. In this case it cannot be disputed that Mrs. Uma Pershad was a necessary party in the appeal and on her death her heirs or legal representatives must take her place. The appeal could not have proceeded in the absence of Mrs. Uma Pershad if she had chosen not to be an appellant or had not been imp leaded as a respondent. Accordingly, in the absence of her legal representatives the appeal is defective.
(20) We, accordingly, hold that the appeal as a whole abates. We find no ground to accept the application, C.M, 504 of 1978, moved under Section 5 of the Limitation Act. Paragraph l of this application in terms says that the applicants thought that it was considered not necessary to bring the heirs and legal representatives of Mrs. Uma Pershad on the record and that the application has only been moved in view of the respondent's application to pass requisite orders of abatement. The contention that the non-filing of the application under Order 22, Rule 3, Civil Procedure Code was not due to negligence but due to bona fide belief on the part of the remaining two appellants that it was not necessary to implead legal representatives of Mrs. Uma Pershad cannot be accepted. We, thereforee, dismiss the application. Inasmuch as C.M. 504 of 1978 is dismissed, C.M. 505 of 1978 has to be dismissed as being barred by limitation.
(21) An argument was advanced that the finding of the lower court that statutory tenancy is not heritable is on the face of it incorrect and grave injustice would be cause if that finding is not set aside. Reference was also made to the amendment in the Delhi Rent Control Act under which the once prevalent view that statutory tenancy is not heritable cannot be said to be the correct law according to the new definition of the word 'tenant'. We cannot comment on merits at this stage.
(22) The result is that the appeal abates and it is held that the surviving appellants cannot continue the same against the respondent. C.Ms. 504 and 505 of 1978 are dismissed. Accepting C.M. 409 of 1978 we hold that the appeal by the surviving appellants is to be dismissed as having abated. In the circumstances we make no order as to costs in this court.