Appeals Nos
635 to 641 of 1957
Appeals from the judgment and decree dated September 8 1954 of the Punjab High Court in Regular First Appeals Nos
42 43 44 45 46 47 and 48 of 1949
R Gopalakrishnan T M Sen and R H Dhebar for the appellants
Darya Dutt Chawla for the respondents
May 1
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
Civil Appeal No 635 of 1957 is an appeal by certificate and raises the question regarding the effect of the abatement of the appeal by the State of Punjab against Labhu Ram one of the respondents on the State appeal against Nathu Ram co respondent
Civil Appeals Nos
636 to 641 of 1957 also raise the same question between the same parties
The facts leading to the appeal are that the Punjab Government acquired on lease certain parcels of land belonging to Labhu Rain and Nathu Ram for different military purposes under the Defence of India Act 81 638 1939 XXXV of 1939
Labhu Ram and Nathu Ram brothers refused to accept the compensation offered to them by the Collector and applied to the Punjab Government through the Collector under r 6 of the Punjab Land Acquisition Defence of India Rules 1943 hereinafter called the Rules as amended by the Notification of the Punjab Government No 1444 HM4419124 dated 10th March 1944 and published in the Punjab Gazette Part 1 dated 17th March 1944 Home Department
The State Government referred the matter to an arbitrator as required under r 10 who after enquiry passed an award ordering the payment of an amount higher than what was offered by the Collector and also ordered the payment of certain amount on account of income tax which would be paid on the compensation received
The State Government appealed against the award to the High Court of Punjab
During the pendency of the appeal Labhu Ram one of the respondents died
The High Court holding that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated dismissed the appeal
It also dismissed the cross objections
The State Government applied for a certificate of fitness of the case for appeal to this Court and the High Court granted it as questions of great private and public importance were involved
It is not disputed that in view of 0
XXII r 4 Civil Procedure Code hereinafter called the Code the appeal abated against Labhu Ram deceased when no application for bringing on record his legal representatives had been made within the time limited by law
The Code does not provide for the abatement of the appeal against the other respondents
Courts have held that in certain circumstances the appeals against the co respondents would also abate as a result of the abatement of the appeal against the deceased respondent
They have not been always agreed with respect to the result of the particular cir cumstances of a case and there has been consequently divergence of opinion in the application of the principle
It will serve no useful purpose to consider the cases
Suffice it to say that when 0
XXII r 4 does 639 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
To say that the appeals against them abated in certain circumstances is not a correct statement
Of course the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed
Such a result depends on the nature of the relief sought in the appeal
The same conclusion is to be drawn from the provisions of 0 1 r 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non joiner of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it
It follows therefore 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 question whether a Court can deal with such matters or not will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible
It may however be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court
The test to determine this has been described in diverse forms
Courts will not proceed with an appeal s when the success of the appeal may lead to the Court s coming to a decision which 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 640 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
There has been no divergence between the Courts about the Court s proceeding with the appeal between the respondents other than the deceased respondent when the decree in appeal was not a joint decree in favour of all the respondents
The abatement of the appeal against the deceased respondent in such a case would make the decree in his favour alone final and this can in no circumstances have a repercussion on the decision of the controversy between the appellant and the other decree holders or on the execution of the ultimate decree between them
The difficulty arises always when there is a joint decree
Here again the consensus of opinion is that if the decree is joint and indivisible the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent
Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified
One view is that in such cases the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court
We do not consider this view correct
The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour
The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final but also as a necessary corollary 641 that the appellate Court cannot in any way modify that decree directly or indirectly
The reason is plain
It is that in the absence of the legal representatives of the deceased respondents the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree
It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken
It is therefore necessary to determine on the facts of this case whether the State appeal could proceed against Nathu Ram
The award of the arbitrator in each of these cases was a joint one in favour of both the respondents Labhu Ram and Nathu Ram
To illustrate the form of the award we may quote the award for the year 1945 46 in the proceedings leading to Civil Appeal No 635 of 1957
It is On the basis of the report of section Lal Singh Naib Tehsildar Exhibit P W 91 and Sheikh Aziz Din Tehsildar Exhibit P W 92 the applicants are entitled to a sum of Rs 4140 on account of rent plus Rs 3872 8 0 on account of Income tax etc due to the inclusion of Rs 6193 8 0 in their total income plus such sum as the petitioners have to pay to the Income tax Department on account of the inclusion of Rs 4140 in their income as awarded by this award The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award even if they are to be paid separately on calculating their rightful share in the land acquired for which this compensation is decreed
Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram The decree in the appeal will have to determine not what Nathu Ram s share in this compensation is but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator
The subject matter for which the compensation is to be calculated is one and 642 the same
There cannot be different assessments of the amounts of compensation for the same parcel of land
The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram
The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram bad abated
To get rid of the joint decree it was essential for the appellant the State of Punjab to implead both the joint decree holders in the appeal
In the absence of one joint decree holder the appeal is not properly framed
It follows the that State appeal against Nathu Ram alone cannot proceed
It is however contended for the State that according to the entries in the village records Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award
We do not agree
The mere record of specific shares in the revenue records is no guarantee of their correctness
The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives
This is not permissible in law
Further the entire case of Labhu Ram and Nathu Ram in their application to the Government for the appointment of an arbitrator was that the land jointly belonged to them and had been acquired for military purposes that a certain amount had been paid to them as compensation that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income tax they would have to pay on account of the compensation received being added to their income
Their claim was a joint claim based on the allegation that the land belonged to them jointly
The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares
The State objected before the arbitrator and urges before us that under the rules the joint application of Labhu Ram and Nathu Ram should have been 643 treated as separate applications with respect to the correctness of the compensation payable to each of them respectively and that the arbitrator should have made separate awards with respect to such separate claims of Labhu Ram and Nathu Ram
The necessary corollary of such a contention for the State is that the abatement of the appeal against Labhu Ram will not make infructuous the appeal against Nathu Ram
The respondent urges that the Punjab Land Acquisition Defence of India Rules do not contemplate separate applications by the persons interested in the compensation on account of the acquisition of a particular parcel of land
The arbitrator did not agree to deal with the claims of Labhu Ram and Nathu Ram separately
He however did not decide the question on the basis of the land belonging jointly to the two brothers as members of the joint Hindu family
He however held that the expression a person interested  in r 3 included all persons claiming an interest in the compensation to be paid on account of the acquisition of the land and that r 18 permitted the joinder of applications for joint enquiry when each case rested on the same and similar basis and each of the applications included land included in a larger part of land acquired at one time
He also took into consideration that the separation of the applications of Labhu Ram and Nathu Ram would involve various difficulties in matters of income tax
He therefore used his discretion and ordered the application to be proceeded with jointly
In view of our opinion on the main point we do not consider it necessary to interpret the rules and decide whether the joint application was maintainable or not
The fact remains that Labhu Ram and Nathu Ram made a joint claim and got a joint decree against the State for compensation
The frame of the appeal is to be with reference to the nature of the decree challenged
We therefore see no force in this appeal and dismiss it with costs
This order will govern the other 644 connected appeals viz Civil Appeals Nos
636 to 641 of 1957
Appeal dismissed


Summary:
The Punjab Government acquired certain parcels of land belonging to two brothers Land N who refused to accept the compensation offered to them and applied to the Government of Punjab under r 6 of the Punjab Land Acquisition Defence of India Rules 1943 to refer to arbitration their joint claim based on the allegation that the land belonged to them jointly
The State Government referred the matter to an arbitrator as required under r 10 who passed an award in favour of both L and N ordering inter alia payment of an amount higher than what was offered to them by the Government
The Government appealed against the said award to the High Court
During the pendency of the appeal before the High Court respondent L died and as no application for bringing on record his legal representative had been made within the time limit the High Court dismissed the appeal holding that the appeal had abated against L and that its effect was that the appeal against N also abated
Held that there can be no question of abatement of appeal against the correspondents of the deceased respondent as Order 22 Rule 4 of the Code of Civil Procedure does not provide for the same but in certain circumstances the appeal cannot proceed against them and such a result depends on the nature of the relief sought in the appeal
If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it
Ordinarily the consideration which will weigh with the court in deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests to determine this have been described thus 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 637 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
The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly
When the decree in favour of the respondents is joint and indivisible the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated
In the present case the appeal against N alone was not pro perly constituted when the appeal against L had abated and the State appeal against N alone could not proceed