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Ramjeet Kohar v. Kharbhan & Ors. - SECOND APPEAL No. - 3062 of 1981  RD-AH 16328 (4 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Second Appeal No.3062 of 1981
Kharbhan & Ors.
Hon. Sunil Ambwani, J.
This appeal was filed in the year 1981. On 20.3.2002 Shri A.P. Srivastava, learned counsel for the respondents filed an application stating that the second appeal has abated as respondent No.3-Awadhu died in 1992, respondent No.4-Barkhu died in 1993 and respondent No.5-Lakhan died in 1996. No reply has been filed to the application nor any substitution application is pending on record.
The suit was filed for permanent injunction restraining the respondents from interfering in the possession of the agricultural land, sehan and house. The suit was dismissed on 13.12.1978. The appeal was also dismissed on 17.10.1981.
In Ramagya Prasad Gupta & Ors. Vs. Murli Prasad & Ors., AIR 1972 SC 1181 the Supreme Court following State of Punjab Vs. Nathu Ram, AIR 1962 SC 89 has laid down the tests, when the failure to bring legal representatives of the respondents on record results into abatement of the appeal. In para 16 of the judgment the Supreme Court held as under:-
"Under Rule 4 (3) r/w Rule 11 of Order XXII C.P.C. the appeal abates as against the deceased respondent where within the time limited by law no application is made to bring his heirs or legal representatives on record. As pointed out by this Court in the State of Punjab v. Nathu Ram, (1962) 2 SCR 636 = (AIR 1963 SC 89) it is not correct to say that the appeal abates against the other respondents. Under certain circumstances the appeal may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (See Mulla C.P.C. Vol. 1 Thirteenth Edition p. 620 under note Non-joinder of
Parties). No exhaustive statement can be made as to the circumstances under which an appeal in such cases cannot proceed. But the courts, as pointed out in the above decision, have applied one or the other of three tests. The courts will not proceed with an appeal (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, it would lead to the court's passing a decree which will 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 could not be successfully executed. These three testes, as pointed out by this Court in Sri Chand v. M/s. Jagdish Pershad Kishan Chand, (1966) 3 SCR 451 = (AIR 1966 SC 1427) are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal."
The judgment has been followed in Dwarka Prasad Singh Vs. Harikant Prasad Singh, AIR 1973 SC 655 (para 7); Harihar Prasad Singh Vs. Balmiki Prasad Singh, AIR 1975 SC 733 (para 36) and Badni (dead) by L.Rs. Vs. Siri Chand (dead) by L.Rs., AIR 1999 SC 1077.
In this appeal the decree is indivisible. The appeal, consequently, abates against respondent Nos.3, 4 and 5 and is dismissed as having abated as a whole.
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