ARAVINDA SARMA AND ORS Vs. PAYODHAR BARUA AND ORS

JUDGEMENT

(1.) This appeal arises out of a suit for declaration. The case for the plaintiff was that some land which had been acquired by the Government, belonged to him and was in his possession. The compensation for this land amounting to Rs. 874 8-0 was held to be payable to defendants 1 to 7. On the date of the suit, the amount was still lying in Court. He, therefore, prayed for a declaration that he was entitled to the amount of compensation for the land in question. The suit was resisted by the defendants. The Sadar Munsiff, Gauhati, decreed the claim, On appeal the amount declared due to the plaintiff by the decree of the trial Court, was reduced. Defendants 1 to 7 have appealed to this Court.

(2.) During the pendency of the appeal in this Court, Chandinath Deb one of the appellants died. His legal representatives were not brought on the record within the time allowed by law. The appeal, therefore, automatically abated so far as the deceased was concerned. It is now contended by the learned Counsel for the respondents that the appeal should be taken to have abated as a whole, as in the absence of legal representatives of the deceased appellant, the appeal is imperfectly constituted.

(3.) It is clear from the plaint that the cause of action against the defendants was joint and indivisible. A declaration against all 7 defendants was prayed for. Till the date of the institution of the suit, defendants had not received jointly or individually any money from the Court. A joint declaration against all the defendants that the plaintiff was entitled to the whole of the amount claimed by them in acquisition proceedings was enough. Defendants resisted the suit on the same basis. The decree that was passed was joint and indivisible even though during the pendency of the suit the amount in question had been paid to the defendants. The decree passed by the lower appellate Court was also joint and indivisible. The modification Was only in respect of the amount. Separate interest or the separate liability of different defendants was not indicated. The extent of their separate liability was never ascertained. It was not necessary for granting appellant the declaration sought for. It is not ascertainable now in the absence of any material on the record. Where a decree is joint and indivisible as in this case, one of the appellants dies and his legal representatives are not impleaded, the abatement will not be limited to the deceased appellant alone. The appeal would abate in its entirety as on account of the absence of necessary parties, appellants against whom a joint decree was passed cannot get any relief. Rule 3 of Order 22, Code of Civil Procedure. applies to appeals. By virtue of this rule, if one of two or more appellants dies and the right to sue does not survive to the surviving appellants or appellants alone and no application is made for substitution of legal representatives, the appeal abates so far as the deceased appellant is concerned. In this case, one of the appellants died. The right to sue did not survive to the surviving appellants. It was necessary, therefore, to implead the representatives of the deceased appellant. They have admittedly not been brought on the record. The consequence is that the appeal has abated against him. The decree being joint and indivisible, the appeal is imperfectly constituted in the absence of the legal representatives of the deceased appellant who are necessary parties to the appeal. The surviving appellants alone cannot urge that the decree be set aside so far as they are concerned, or to the extent of their shares in the money in dispute. Their share is unascertained and is unascertainable. Beside, if such a contention were to succeed there will be two conflicting decrees. In these circumstances, the abatement of the appeal would be entire and not parital.