Case: Dhup Singh and Others Vs. Rattan and Others

in the circumstances of this case, we feel persuaded to enlarge the time of 90 days fixed under Order XVI, Rule 21 of the rules and direct the substitution of the legal representatives of respondents 56 and 31. This would have necessitated the adjournment of the appeal for proceeding on merits if we would have felt persuaded to allow it. But since we are going to dismiss it, further delay in the disposal of this 10 years old appeal was not thought necessary on this account.6. The next matter of substitution relates to the death of appellant 16 which occurred on June 22, 1965. The application for substitution was filed in the High Court on February 28, 1968 after the despatch of the records to this Court but before a formal petition of appeal was lodged here. This application was filed in accordance with Order XVI, Rule 13 of the then existing Supreme Court Rules, 1950. It had to be filed within 90 days from the date of the death of the appellant as required by Rule 14 of Order XVI. As provided in rule 14A the provisions of Order XXII of the Code of Civil Procedure relating to abatement were applicable to appeals and proceedings under Rules 12 and 13. We do not, however, find a sub-rule like (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise.8. The order of the High Court dated September 16, 1954 in Regular First Appeal 67 of 1953 reads as follows :Parties to this appeal had entered into a compromise which is shown in the affidavit of Chuni Lal. The case was sent down to the trial Court for the attestation of the compromise and both parties accepted before the trial Court the compromise which had been filed here. We therefore, pass a decree in terms of the compromise. Let a decree therefore be drawn up reciting the terms of the compromise as given in the affidavit of Chuni Lal. There will be no order as to costs.9. The trial Court had dismissed the entire suit. The dismissal was in favour of non-appearing defendants or respondents also. The High Court proceeded to pass the above order as if all the parties to the appeal had compromised and it could be disposed of only on its basis. At the threshold the mistake was on the part of the lawyers of either parties to the compromise in not pointing out to the High Court that all the defendant-respondents were not parties to the compromise and the appeal if it was fit to be allowed had to be allowed against them even though they were ex parte. The second mistake was on the part of the Registry of the Court in not bringing this matter to the notice of the Court. Notwithstanding all this it was obviously a mistake of the Court also to dispose of the appeal in terms of the compromise only. The effect of this mistake was that the appeal was neither dismissed nor allowed ex parte against the non appearing defendant-respondents. The decree drawn up on the basis of the order of the High Court aforesaid recited :".... the appeal, having been compromised it is ordered that the decree of Sub-Judge, First Class, Sonepat at Jhajjar, dated January 21, 1953 as described overleaf be and the same is hereby set aside and in lieu thereof the decree be and the same is hereby passed in favour of the plaintiff-appellants in terms of the compromise (copy enclosed) entered into by the appellants and the contesting respondents 8, 9 and 10 to 14 on the following conditions."10. It was argued for the appellants before us that the decree of the Subordinate Judge had been set aside. But the decree drawn up on the basis of the High Court order, dated September 16, 1954 has to be read in the light of the order as a whole. Thus reading it, we have no doubt in our mind that even the effect of the decree drawn up had merely been to set aside the decree of the trial Court in so far as it was in favour of the defendant-respondents who had entered into the compromise. It was substituted by a compromise decree but all the defendants being not parties to this compromise, no kind of preliminary decree was passed against them. It will bear repetition to say that the appeal was not disposed of against them even ex parte either way. That being so, the High Court is right in its view that the proceeding for preparation of a final decree against those defendants was invalid and no final decree could be made against them.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not, however, find alike (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise.