Whether Abatement Of Appeal On Non-Substitution Of Deceased Party Is Partial Or Whole?: Supreme Court Explains
The Supreme Court dismissed Civil Appeals arising from a Civil Suit which was dismissed by the Trial Court and decreed by the First Appellate Court.
Justice P.S. Narasimha, Justice Manoj Misra, Supreme Court
The Supreme Court has summarized the law governing determination of the issue as to whether abatement of an Appeal on non-substitution of a deceased party is partial or whole.
The Court was hearing a batch of Civil Appeals arising from a Civil Suit which was dismissed by the Trial Court and decreed by the First Appellate Court.
The two-Judge Bench of Justice P.S. Narasimha and Justice Manoj Misra summarized the following points –
1. The answer to the question whether the entire Appeal abates or it abates partially qua the deceased party alone, will depend on facts of each case and, therefore, no exhaustive statement about the circumstances in which the entire Appeal would abate can be made.
2. As a matter of course courts will not proceed with an Appeal (a) when the success of the Appeal may lead to the court coming to a decision which is in conflict with the decision between the appellant and the deceased respondent 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 would not be successfully executed.
3. In a case of “joint and indivisible decree” or “joint and inseverable or inseparable decree”, the abatement of Appeal in relation to one or more of the Appellant(s) or Respondent(s) on account of failure to bring on record his or their legal representatives in time would prove fatal to the entire Appeal because proceeding qua the surviving party or parties may give rise to inconsistent or contradictory decrees.
4. The question as to whether the decree is joint and inseverable, or joint and severable or separable, must be decided, for the purposes of abatement or dismissal of the entire Appeal, only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à vis the remaining parties would suffer the vice of contradictory or inconsistent decrees.
5. A decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other which means that the two decrees are mutually irreconcilable or totally inconsistent, that is, if laid side by side, the only impression would be that one is in the teeth of the other.
6. Where the Plaintiffs or Appellants have distinct, separate and independent rights of their own i.e., not inter-dependent upon the other, and for the purpose of convenience, or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as a combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree.
7. Existence of a joint right as distinguished from tenancy-in-common is not the criterion of a joint or inseverable or inseparable decree. The joint character of the decree will take colour from the nature of the decree challenged.
Senior Advocate Jayant Mehta appeared on behalf of the Appellants while Senior Advocate N.K. Mody appeared on behalf of the Respondents.
Facts of the Case
A Suit was instituted against the deceased (predecessor-in-interest of the Appellants) and another person by the Respondent, seeking declaration, recovery of possession, mesne profits in respect of a house. The Plaintiff claimed an exclusive title over the suit property through its ancestor and pleaded that the Defendants were his tenant. The Defendants filed a joint written statement and the deceased died during the suit proceeding. His legal representatives (LRs) i.e., the Appellants filed their written statements. In the written statement, while denying the alleged tenancy, the Defendants claimed title over the suit property through their ancestor who according to them had derived exclusive interest in the property through a partition with his brothers in the year 1947.
The Trial Court dismissed the suit against which an Appeal was filed by the Plaintiff. The First Appellate Court decreed the suit against which the Appellants filed the Second Appeal. During its pendency, another Defendant also died. Information of his death was given to the Court, however, his LRs were not brought on record within time. The High Court declared the Appeal to have abated. To set aside abatement and to substitute the LRs, two set of Applications were filed along with delay condonation applications. Both sets were rejected and being aggrieved, the Appellants approached the Apex Court.
Reasoning
The Supreme Court in the above regard, observed, “… a mere assertion that surviving party’s own share could be determined would not save the proceeding from abatement on non-substitution of the legal representatives of the deceased co-sharer if the pleadings reflected a joint claim based on an allegation that the subject matter of the suit belonged to them jointly.”
The Court said that in respect of the subject matter of a suit or a proceeding arising therefrom, the Court cannot pass inconsistent decrees and in consequence, if, due to non-substitution of LRs of a deceased party, the decree qua the deceased party has attained finality by abatement of proceedings qua him, the Court cannot proceed further if a reversal or modification of the decree under Appeal would result in conflicting or inconsistent decrees.
“Therefore, in such a situation, the appeal would abate in its entirety”, it noted.
The Court further summarized the law as follows –
i. Rule 4 of Order XLI of the Civil Procedure Code, 1908 (CPC) 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. A plaintiff or defendant can take advantage of this provision, but he may not.
ii. Rule 4 of Order XLI of CPC is to enable one of the parties to a suit to obtain relief in Appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an Appeal may reverse or vary the decree in favour of all the parties who are having the same interest as the appellant, even though they have not appealed against the decree.
iii. Order XXII of CPC applies without exception to all proceedings covered by it. It operates during the pendency of a proceeding including an Appeal and not at its institution.
iv. Where an Appeal is filed by any one or some of the Plaintiffs, or Defendants, aggrieved by the decree, by impleading other such plaintiff(s) or defendant(s) as proforma-respondent(s), in the event of death of such proforma-respondent, the benefit of the provisions of Order XLI Rule 4 would be available to continue the Appeal regardless of substitution of LRs of such proforma-respondent.
v. There is no inconsistency between the provisions of Order XXII and those of Rule 4 of Order XLI CPC. 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.
Conclusion
The Court was of the view that the finding returned by the High Court that there was no sufficient cause for condonation of delay in filing application for substitution and setting aside abatement does not suffer from any illegality or perversity as to warrant an interference.
“On abatement of second appeal qua the second appellant Ram Babu, the entire second appeal abated as continuance of the second appeal would have given rise to a possibility of inconsistent decrees i.e., one in favour of the plaintiff against the deceased defendant-appellant and the other in favour of the surviving defendant appellant, even though both defendants claimed joint interest in the suit property flowing from their father”, it also remarked.
The Court concluded that as the Second Appeal was jointly filed by the two Defendants, the benefit of the provisions of Order XLI Rule 4 CPC was not available to the surviving Defendant to continue with the Second Appeal and seek for reversal or modification of the decree operating against the deceased-Appellant as well.
Accordingly, the Apex Court dismissed the Appeals.
Cause Title- Suresh Chandra (deceased) thr. LRs. & Ors. v. Parasram & Ors. (Neutral Citation: 2025 INSC 873)
