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Ponnambala Moothan Vs. Mahadeva Pattar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.697
AppellantPonnambala Moothan
RespondentMahadeva Pattar and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rules 4, 11 - application for amendment of decree--death of one of respondents pending appeal--legal representatives not brought on record, effect of--belief, whether can be granted. - - he failed in the lower court, and his application to the high court was rejected......this appeal one of the defendants-respondents died and no proper steps were taken to bring his legal representatives on record in time. the appeal, therefore, has abated as against him under order xxi1, rules 4 and 11 of the code of civil procedure, read together. the preliminary objection is taken by the other respondents that this appeal cannot go on and must be dismissed as the legal representatives of the deceased respondent are necessary parties to this appeal. the application from which this appeal arises is to amend a decree passed against three defendants as above stated. it is not possible to amend that decree without having on record and hearing all of them on the point. we cannot allow a partial amendment of a decree, which is equally against all the defendants, as against.....
Judgment:

1. In this case plaintiff applied for amendment of a decree which was against three defendants by increasing the costs and interest awarded to him. He failed in the lower Court, and his application to the High Court was rejected. This is a Letters Patent Appeal against that order. Pending this appeal one of the defendants-respondents died and no proper steps were taken to bring his legal representatives on record in time. The appeal, therefore, has abated as against him under Order XXI1, Rules 4 and 11 of the Code of Civil Procedure, read together. The preliminary objection is taken by the other respondents that this appeal cannot go on and must be dismissed as the legal representatives of the deceased respondent are necessary parties to this appeal. The application from which this appeal arises is to amend a decree passed against three defendants as above stated. It is not possible to amend that decree without having on record and hearing all of them on the point. We cannot allow a partial amendment of a decree, which is equally against all the defendants, as against some of the defendants alone. We might thereby interfere with rights of contribution inter se. The whole appeal must, therefore, be dismissed on the ground that the relief asked for in the appeal cannot be granted in the absence of one of the parties.

2. The appeal is dismissed with costs.


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