C.K. Thakur, J.
1. In this appeal a preliminary objection has been raised by the learned counsel for the respondent No. 1 that Shamsher Singh, respondent No. 2 had died some two three years back and that the appellant had foiled to bring his legal representatives on the record in time and, therefore, according to the learned counsel for the respondent No. 1 the decree being a joint decree and the necessary party not brought on the record, the appeal ahates as a whole. Learned counsel for the appellant contends that in fact the preliminary decree in the suit was passed only against the present appellant. Sh. Shamsher Singh had pleaded that he had rendered accounts to defendant No. 1 and further that the issues also show that only defendant No. 1 was liable to render accounts and as such on the death of Sh. Shamsher Singh, the appeal did not abate as a whole.
2. In order to appreciate the contention of the parties, it would be proper to give the narration of the facts:
3. Shrimati Rani Raj Devi, plaintiff had appointed the appellant as also Shamsher Singh (since deceased as her general-attorneys by a registered deed, dated 29-12-1949 to prosecute suits, to effect recoveries and to attend to other works mentioned in the agreement. The appellant and Shamsher Singh, it appears did not render the accounts and, therefore, Shrimati Rani Raj Devi filed the suit out of which this second appeal has arisen. The suit was filed on 12-11-1955 for rendition of accounts against the defendants in the court of the Sub-Judge, Hamirpur. It was stated in the plaint that defendant No. 2 had resigned one year before the filing of the suit and had handed over the account books to defendant. No. 1 who had refused to render accounts. The plaintiff had cancelled the power of attorney in favour of defendant No. 1 in the month of September, 1955.
4. Defendant No. 1 viz. the present appellant resisted the suit pleading inter alia that he had already rendered the accounts to the plaintiff, further she was not entitled to ask for accounts because she had ceased to be the owner of the property which had been transferred to her by her husband,
5. The defendant No. 2 admitted the allegations of the plaintiff but denied his liability on the ground that he had already rendered the accounts to defendant No. 1.
6. The trial Court held that defendant No. 1 was estopped from raising the plea that the plaintiff was not the owner of the property. Further it was held that the defendant No. 1 was liable to render accounts and in these circumstances the court passed a preliminary decree for accounts in favour of the plaintiff against the defendants. On 20-8-1956 one Madho Ram, Advocate was appointed as Commissioner to take accounts.
7. The Commissioner filed his report on 12-11-1956, whereby he found that an amount of Rs. 23,998 was due from the defendants to the plaintiff. The defendant No. 1 filed his objection against that report. After recording the statement of Shri Madho Ram, Advocate the learned Sub. Judge came to the conclusion that the amount due from the defendants to the plaintiff was in excess of. his pecuniary jurisdiction of Rs. 1,000 and the case on his report was, therefore transferred by the District Judge, Hoshiarpur to the Court of Subordinate Judge, at Kangra.
8. The Sub-Judge, first class Kangra proceeded ex parte against defendant No. 1 because he failed to put in appearance before him despite service of summons. After considering the objections, the report and the statement of the Local Commissioner and having heard the arguments, the learned Sub-J. passed a final decree in favour of the plaintiff for a sum of Rs. 23,993 with costs against both the defendants on 15th of January, 1957.
9. Defendant No. 1 it appears, filed an application for setting aside the ex parte decree but the same was rejected on 30-8-1957. Then he filed an appeal in the Punjab High Court which was allowed and the ex parte order of the Sub-Judge First Class, dated 15th January, 1957 was set aside. The suit was remanded. Thereafter, it appears that the present appellant filed a review petition but before the review petition could be decided, the case was again transferred by the District Judge Hoshiarpur to the Sub-Judge, First Class Hamirpur. The learned Sub-Judge First Class, Hamirpur accepted the review application and the defendant No. 1 was given an opportunity for producing his remaining evidence on 21-2-1960 by an order, dated 22-12-1959. The learned Sub-Judge passed the final decree for Rs. 17,198 with costs against the defendants on 8-2-1960 (sic). Thereafter the defendant No. 1 went in appeal to the Punjab High Court at Chandigarh. Shamsher Singh respondent No. 2 was arrayed as respondent No. 2 in the appeal. Shrimati Rani Raj Devj, plaintiff filed her cross-objections registered as C. M. P. No. 1766 of 1960. The case was transferred to the Delhi High Court, Himachal Bench in 1967.
10. On 26-11-1974 it was brought to the notice of the Court by the learned counsel for the respondent No. 1 that Shri Shamsher Singh had died and, therefore, time was granted to the Opposite party to ascertain the fact end to take such necessary action as it was deemed proper. Learned counsel for respondent No. 1 filed C. M. P. 312 of 1975 purporting to be one under S. 151, C.P.C. to the effect that Shamsher Singh died on or before 2-8-2-19569. The decree for recovery of the amount was passed jointly against the defendant-appellant and Shamsher Singh deceased and that for failure of the appellant to bring the legal representatives on the record within the statutory period, the appeal had abated as a whole.
1. Learned counsel for the appellant, as already stated, contended that there was no joint decree. The issues, as framed, were also against defendant No. 1 and the decree was also passed against defendant No. 1 and as such defendant No. 2 was not a necessary party in appeal and for failure to bring his legal representatives on the record, the appeal did not abate as a whole and he has placed a few authorities before this court to show as to in what circumstances the appeal will abate as a whole.
12. The first authority is State of Punjab v. Nathu Ram (AIR 1962 SC 89). In this case certain land belonging to two brothers L and N jointly, was acquired for military purpose. On their refusal to accept the compensation offered by the Collector, the State Government referred the matter to the arbitrator under R. 10 of the Punjab Land Acquisition (Defence of India) Rules 1943. The arbitrator passed a joint award granting a higher compensation. The State Government appealed against the award to the High Court. During the pendency of appeal L died and as his legal representatives were not brought on the record, the appeal abated against him. The question was whether the appeal also abated as against N. It was held that the appeal against N alone could not proceed. To get rid of the joint decree it was essential for the appellant State to implead both the joint decree-holders and in the absence of the one the appeal was not properly constituted. The subject-matter for which the compensation had been awarded was one and the same land and the assessment of compensation so far as L was concerned having become final, there could not be different assessments of compensation for the same parcel of land. The mere record of specific shares of L and N in the revenue record was no guarantee of their correctness and the appellate court would have to determine the share of N and that of L in the land in absence of L's legal representatives which was not permissible in law. Further it was held when Order 22, Rule 4, C.P.C. does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. The provisions of Order 1, Rule 9, C.P.C. also show that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with theappeal and, therefore, dismiss it. So from this aforesaid authority it clearly emerges that if there is a joint-decree and the appeal is filed by one of the judgment-debtors making the other co-defendant as a pro forma-respondent, then in that case if it is not (sic) possible for the Court to deal with the matter in controversy so far as the rights and interest of the appellant and respondents other that the deceased respondent then it will have to proceed further with the appeal and decide it.
13, The other authorities cited are: Mahendra Neth Bose v. Abinas Chandra Bose (AIR 1923 Cal 615), Rameshwar Prasad v. Shambehari Lal Jagannath (AIR 1963 SC 1901), Sri Chana v. Jagdish Pershad Kishan Chand (AIR 1966 SC 1427), Ram Chander v. Sham Lal (1967 Cur LJ 369) Mahabir Prasad v. Jage Ram (AIR 1971 SC 742) and Ram-agya Prasad Gupta v. Murli Prasad (AIR 1972 SC 1181) From all these authorities what follows is that where one of the respondents dies during the pendency of the appeal and his legal representatives are not brought en the record though the appeal does not necessarily abate against the remaining respondents there are circumstances in which an appeal cannot proceed against the other respondents. Those circumstances are (a) when the success of the appeal may lead to the Court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, which would lead to the courts passing a decree which would be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent, (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds be ineffective, that is to say it cannot be successfully executed. Where one of the defendants dies pending the suit the test of judging whether there is a partial or total abatement is to see whether the suit can proceed in the absence of the deceased defendant. In other words, it is to be seen whether the suit is one in which the liability of the defendant is joint and indivisible or not. The question whether the whole appeal abates or only a part of it because of the appellant's failure to bring on record within time the legal representatives of one of the deceased respondents has to be decided in each case on its own facts.
14. In the instant case it is manifest that the decree passed by the trial court was joint and indivisible, and in so far as Shamsher Singh is concerned he had died and his legal representatives were not brought on the record and, therefore, qua Shamsher Singh the decree had become final and there would be inconsistent decrees about the same subject-matter and in order to avoid conflicting decrees the Court has no alternative but to dismiss the same as a whole because on the death of Shamsher Singh his interest cannot be separated from that of the appellant Hence the appeal abates as a whole and on that ground the same is hereby dismissed, with no orders as to costs.
R.S. Pathak, C.J.
15. I agree.