KOTHARI, J. - (1.) THIS appeal against the plaintiff- respondent Mukat Behari was already dismissed as having abated on 12. 9. 2000. Later on, an application for setting aside that abatement was rejected by this Court on 12. 4. 2002 as the plaintiff-respondent Mukat Behari died on 17. 6. 99 and the appellant State did not take any steps for bringing on record legal representatives of said deceased plaintiff-respondent Mukat Behari. Therefore, the sole question which may be seen is as to whether the appeal as a whole stands abated against the other co- defendants or not.
(2.) NOBODY was present on behalf of appellant State. Mr. G. K. Garg, learned counsel appearing for the respondents has invited the attention of this Court towards the various judgments in support of his submission that the nature of decree in the present case in a suit filed for declaration and permanent injunction is of a joint and inserverable nature and, therefore, the whole appeal should be dismissed as having abated. Firstly he relies upon the judgment of Hon'ble Supreme Court in State of Punjab vs. Nathu Ram reported in AIR 1962 SC 89, wherein the Hon'ble Supreme Court observed that when O. 22 R. 4 CPC 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 only question is whether the appeal can proceed against them. The provisions of O. 1 R. 9 CPC 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 the appeal and therefore dismiss it. The Hon'ble Supreme Court laid down the test for determination in the following term, "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 will be in conflict with the decision between the appellant and the deceased respondent and therefore which 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 reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed. " Then in Ram Sarup and ors. vs. Munshi and Ors. reported in AIR 1963 SC 553, in the suit for pre-emption, the Hon'ble Supreme Court held on the death of one of the appellants, that there can be no partial pre-emption because pre-emption is the substitution of the pre-emptor in place of the vendee. The sale in this case was not a sale of any separated item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. Yet the Court held that as the decree was a joint one and a part of the decree had become final by reason of abatement the entire appeal must be held to be abated. In Badni (dead) by Lrs. and Ors. vs. Shri Chand (dead) by Lrs and Ors. (1999) 2 SCC 448, the Hon'ble Supreme Court while relying on Nathu Ram's case (supra) held that High Court was right in coming to the conclusion that decree was based on a common issue against the appellants in all the six appeals and the failure to bring the legal representatives of one of the deceased appellants in one appeal will result in abatement of other appeals. Otherwise, there will be conflicting decree in the event of other appeals being allowed on merits, which cannot be allowed. In Shahazada Bi and Ors. vs. Halimabi (2004) 7 SCC 354, the Hon'ble Supreme Court reiterated the test in the following terms, "the question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purpose of abatement, with reference to the fact as to whether the decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and enforcement of one would negate the enforcement of the other. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. A distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole but abates only in respect of the interest of the deceased respondent. In the recent pronouncement in N. Khosla vs. Rajlakshmi and Ors. (2006) 3 SCC 605, the Hon'ble Supreme Court again held that whether an appeal partially abates on account of the death of one or the other party on either side has to be considered depending upon the fact as to whether the decree obtained is a joint decree or a severable one. In case of a joint and inseverable decree if the appeal abated against one or the other, the same cannot be proceeded with further for or against the remaining parties as well.
(3.) THUS it seems to be clear position of law that appeal is a whole would abate, if the decree is of a joint or inseparable character. In this case, since the trial Court decreed the suit of declaration of the sole plaintiff-respondent and appeal of the State against that plaintiff-respondent as abated, the appeal against the remaining respondents cannot be allowed to proceed as it may result in conflict of decree. The appeal as a whole abates and is liable to be dismissed. Consequently, this appeal is dismissed as abated. .;