Pedda Kempaiah (deceased) and another vs Berappa and 3 others

Srinivasan, J.—The second appeal arises out of a suit for declaration of plaintiffs title to the suit properties and for injunction restraining the

defendants from interfering with the plaintiffs possession and enjoyment of the suit properties or in the alternative to order partition of the ''B''

schedule properties into 25 equal shares and allot six shares to the plaintiff. The trial court dismissed the suit, but the appellate court granted a

decree declaring the title of the plaintiff to ''A'' schedule properties and granting injunction restraining the defendants from interfering with the

possession of the plaintiff. The Second appeal has been filed by the first defendant and the third defendant. The other defendants were made

parties to the appeal along with the plaintiff. During the pendency of the appeal the first appellant died and the applications to bring his legal

representatives on record, to set aside the abatement caused by the death of the first appellant and to condone the delay in seeking to set aside the

statement were all dismissed by me today (vide C.M.P. No. 15138 to 15141 of 1990). In view of the dismissal of the said applications the appeal

stands dismissed as against the first appellant.

The question is whether the appeal can be continued by the appellant. Undoubtedly the decree passed by the lower appellate court is a single

decree passed against all the defendants. It has now become final as against the first appellant-first defendant. Learned Counsel for appellants

contends that the appeal will not abate as regards the second appellant and he can continue to appeal. According to Learned Counsel, when there

is a decree against several persons and It has become final against only some of them, it is open to others to challenge the decree and gel it

reversed even with regard to the persons against when it had become final already. Reliance is placed upon the provisions of Order 41 Rule 4 of

CPC and the judgments of the Calcutta High Court in Santosh Kumar Mondal and Others Vs. Nandalal Chakrapani and Others, and the Supreme

court on Mahabir Prasad v. Jaga Ram 1971 S.C. 742. Learned Counsel for the appellant placed reliance on the judgment of a Division Bench of

this Court in Kumaraswami Gounder and Others Vs. D.R. Nanjappa Gounder (dead) and Others, in which there was a reference to a Full Bench

on another point. However, in the said case there was no abatement of the appeal as against anyone of the parties thereto. The Bench considered

the position whether a second appeal filed by some of the alienees against whom a decree was passed by the court below could attract the

provisions of O.41, Rr.4, and 33, C.P.C. and whether the appellate court could vary the decree in favour of all the alienees in spite of the feet that

some of them had not filed an appeal. The Bench held that the appellate court as entitled to vary the decree even against persons who had not

challenged the same by filing an appeal. The question which has arisen before me did not arise before the Division Bench. Hence the judgment has

no application to the facts of this case. I am bound by direct judgments of the Supreme Court and a Division Bench of this Court in this matter. In

Trichand v. Jagadish Tershad AIR 1966 S.C. 1427 it was held that the appellate court had no power to proceed with an appeal and to reverse

and vary the decree in favour of all the plaintiffs or the defendants under Order 41 Rule 4, C.P.C. when the decree preceded on a ground common

to all the plaintiffs or defendant, if all the plaintiffs or defendants appealed from the decree and any of them died and the appeal abated so far as the

said person was concerned. The Supreme Court placed reliance on its earlier decision in Rameshwar Prasad and Others Vs. Shyam Beharilal

Jagannath and Others, Applying the dictum of the Supreme court in the said decision, a Division Bench of this Court has in Muthuswamy and

Another Vs. V. Venugopalan, held that if a decree is joint against several defendants and if the decree has become final so far as one defendant is

concerned on account of abatement on his death, the appeal by the other defendants should be held to be not maintainable because the process of

the appeal would lead to the court coming to a decision which would be inconsistent with the decision between the deceased appellant and the

respondent and that would lead to the court passing a decree which would be contrary to a decree which has already become final in respect of

the some subject-matter between the deceased appellant and the respondent. The decision of the Division Bench applies on all fours to the present

case. If the second appeal is heard and allowed, the decree in the second appeal would be directly contrary to the decree which has become final

as against the first defendant-first appellant on the abatement of the appeal as against him. Hence the second appeal cannot be proceeded with

further. The second appeal is dismissed as abated even as against the second appellant. There will be no order as to costs.