Trivedi, J. - (1.) THESE are two con nected appeals and may be conveniently de cided by one judgment as they raise same common questions of fact and law.
(2.) BOTH the appeals have been filed by the State of U. P., against Smt. Shabati Devi and 6 others who are the legal repre sentatives of Sita Ram Gupta. The facts giving rise to these appeals may be summa rised as follows: Sita Ram Gupta was a building contrac tor and there was a contract between him on the one side and the Executive Engineer, P. W. D. on behalf of the State of U. P. on the other by which Sita Ram Gupta was given a contract for building three strayed ward in the King Georges Medical College, Lucknow. This work was to start from 20-10-1948 and to be completed by 18-10-1949. The work according to the respondents could not be completed within the stipulated time on account of defaults and omissions of the officers of the appellant. Subsequently, the time for completion of the building was ex tended up to 12-10-1950. Sita Ram Gupta then filed a suit against the State of U. P. for recovery of Rs. 3,53,577-2-6 on account of the constructions made by him in terms of the contract. During the pendency of the suit he died and seven of his heirs and legal representatives including a daughter Km. Runa Gupta "were substituted in his place. Thereafter the parties agreed on 20th July, 1962, to refer the dispute to the arbitration of Sri U. C. Oswal, the then Deputy Legal Remembrances to U. P. Government. The arbitrator made an award on 10-10-1965. Against this award the appellant-defendant filed objections under Section 30 of the Arbi tration Act with a prayer that the award may be set aside. The respondents-plaintiffs also filed objections. On hearing these objec tions the Additional Judge Small Causes, Lucknow, decided to remit the award and by an order dated 2-3-1966 dismissed the appel lant-defendant's objection to set aside the award and remitted the award to the arbitra tor for reconsideration of three points stated in the judgment. The arbitrator was direct ed to submit his final award within two months. F. A. F. O. No. 41 of 1966 has been filed by the State of U. P., aggrieved from this order of the lower court dated 2nd March, 1966. In accordance with the afore said order of remittance the final award was made by the arbitrator on 3rd May, 1966 and a sum of Rs. 90,416.94 paise was awarded to the respondents against the de fendant- appellant with pendente lite interest at the rate of 3% per annum simple except for the period commencing from 1-7-57 and ending on 31-7-60. There was also an order with regard to costs. Against this award also objections were filed on behalf of the appellant, but they were partly allowed and the award dated 10-10-1965 and the final award dated 3-5-1966 treated as the supple mentary award 1966 were made rule of the court with the modification that no interest was to run on the amount of Rs. 692- 12-9. It is against this judgment that F. A. F. O. No. 9 of 1967 has been filed. A preliminary objection has been raised by Sri Nazir Uddin, learned counsel for the respondent in both these appeals which may be first considered. The objection is that in these appeals one of the heirs and the legal representatives of Sita Ram Gupta deceased plaintiff, namely, Km. Runa Gupta was not impleaded as a respondent. Runa Gupta, it is submitted, was impleaded as one of the plaintiffs in the plaint on the death of Sita Ram Gupta on 3-2-69 and on account of omission to implead her in the array of respondents the memorandum of appeal be comes fatally defective and these appeals are liable to be dismissed on this ground alone. When this defect was brought to the notice of a Bench of this Court it was pointed out by way of explanation that the name of Runa Gupta was omitted, from the formal order prepared from the impugned judgment of the lower court. The Bench ordered that appellant should take steps to get the formal order corrected by securing addition of the name of Runa Gupta in the formal order within one month and also to implead Runa Gupta as a respondent in these appeals. The formal order was corrected, but the appel lant did not take any steps for impleadment of Runa Gupta during the time allowed by the Court. Subsequently the State of U. P. prayed for further extension of time under Section 148, Civil Procedure Code for im pleadment of Runa Gupta in the appeal, but this prayer was rejected by a Bench of this Court on 14-12-72. The position, therefore, is that Runa Gupta who happened to be one of the plaintiffs before the Court below has not been impleaded and we have to judge the consequences of this omission. It is clear from the facts that the interest of all the legal representatives and heirs of Sita Ram Gupta, the present plaintiffs, was joint and indivisible. The impugned judgment and orders of the lower courts have become final in favour of Runa Gupta and against the State of U. P. If in the circumstances the present appeals were allowed then they will result in two contradictory decrees, one in favour of Runa Gupta and another in favour of the appellant and against the present res pondents. When such may be the conse quence of a defect in the memo of appeal, this court cannot proceed to decide the ap peals which are liable to dismissal due to defective record.
(3.) A situation analogous to the pre sent one arose in an appeal before the Sup reme Court and was considered in the case of State of Punjab v. Nathu Ram, AIR 1962 SC 89. Certain land belonging to two brothers L and N jointly was acquired for military purposes and on their refusal to ac cept the compensation offered by the Col lector, the matter was referred for enquiry to an Arbitrator who passed a joint award granting higher compensation. The State Government appealed against the award to the High Court. While the appeal was pend ing L died and his legal representatives were not brought on record. The appeal abated against him. The question arose whether the appeal also abated as against N. It was held that appeal against N alone could not pro ceed and it was essential for the appellant to implead both the joint decree-holders and in the absence of one the appeal was not pro perly constituted. In this connection it was further observed that when Order 22, Rule 4 C. P. C. does not provide for the abatement of appeal 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 respon dent 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 the appeal and therefore dismiss it.;