Case: Pandit Sri Chand And Ors Vs. M/S. Jagdish Parshad Kishan Chand

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."The principle of this judgment was affirmed in Rameshwar Prasads case (1964) 3 SCR 549 : (AIR 1963 SC 1901 ) and later in an unreported judgment in Kishan Singh v. Nidhan Singh, C. A. No. 563 of 1962, dated 14-12-1964 (SC). It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Rams case (1962) 2 SCR 636 ; (AIR 1962 SC 89 ) are not cumulative tests. Even if one of them is satisfied, the Court say, having regard to all the circumstances, hold that the appeal has abated in its entirety.8. But counsel for the appellants has contended that the rule laid down by this Court in Nathu Rams case (1962) 2 SCR 636 ; (AIR 1962 SC 89 ) and other cases has no application to this appeal firstly, because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained in O. 22 R. 12 Code of Civil Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree appealed against gives rise to a liability which is joint and several it is open to one of the persons declared so liable to prosecute an appeal in so far as he is concerned, notwithstanding abatement of the appeal of a co-obliges. Order 22 R. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts. In some cases the view has prevalied that appeals from order in execution proceedings are not subject to rules 3, 4 and 8 of O. 22 Code of Civil Procedure and failure to implead heirs and legal representatives of a deceased party in such an appeal will not be visited by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceeding in execution of a decree" and that such a appeal will abate if the heirs are not brought on record within the period of limitation, and that Rs. 12 has no application to appeals. In this appeal it is not necessary to resolve this conflict, for appeals to this Court are governed by the rules contained in O. 16 of the Supreme Court Rules. 1950, and by R. 14 thereof it is provided. :"An application to bring on record the legal representative of a deceased appellant or respondent shall be made within ninety days of the death of the said appellant or respondent :Provided that in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded." The rule is explicit and makes no exemption in favour of any class of appeals. It is true that R. 14-A of O. 16 of the Supreme Court Rules, 1950, provides that :"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 18 in the High Court and in the Supreme Court, and thereby the provisions of O. 86 relating to abatement of appeals are attracted. But there is no warrant for holding that any class of appeals filed in this Court is exempt from the operation of R. 14.9. Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other: vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the liability arises under distinct transactions.10. It must, therefore be held that the appeal has abated, because the representatives of the second appellant Basant Lal have not been brought on record within the time permitted by R. 14 of O. 16. of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned.

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

Explanation:
0[ds]In our view this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded, and the record of the appeal is defective. That is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it affects the claim of appellants 1 and 3 and the third respondent. Support was sought to be derived for the first contention from O. 41 R. 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour of all the sureties.sureties.6. Basant Lal died after the order of the High Court under appeal. he had preferred an appeal, but since the legal representatives to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellates 1 and 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders - one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not22 R. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts. In some cases the view has prevalied that appeals from order in execution proceedings are not subject to rules 3, 4 and 8 of O. 22 Code of Civil Procedure and failure to implead heirs and legal representatives of a deceased party in such an appeal will not be visited by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceeding in execution of a decree" and that such a appeal will abate if the heirs are not brought on record within the period of limitation, and that Rs. 12 has no application to appeals. In this appeal it is not necessary to resolve this conflict, for appeals to this Court are governed by the rules contained in O. 16 of the Supreme Court Rules. 1950, and by R.Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other: vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the liability arises under distinct transactions.10. It must, therefore be held that the appeal has abated, because the representatives of the second appellant Basant Lal have not been brought on record within the time permitted by R. 14 of O. 16. of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned.