Y.Sathiraju (D) Tr.His Lrs . vs Goli Kannayya (Dead) By Lrs. .

2. When the aforesaid civil appeals were taken up for adjudication, the respondents/plaintiffs raised a preliminary objection to the prosecution of the appeals on the ground that the civil appeals have abated in toto. It is to be further noticed that the defendant no. 2 Goli Sathiraju died on 21 st February, 2006 and his legal heirs have not chosen to come on record and when the matter was listed before the Chamber Judge, it was observed vide Order dated 24th July, 2009 as follows:­ “IA No. 2 in SLP(C ) No. 9401/2006 is for deletion of petitioner no. 2 who is stated to have died on 21/2/2006 and his LRs have not chosen to come on record. Hence, the matter abates insofar as petitioner no. 2 is concerned. I.A. No. 2 is allowed.

Petitioner no. 2 in SLP(C ) No. 9401/2006 is the respondent no. 2 in the connected SLP(C ) No. 19919/2006. SLP(C ) No. 9401/2006 insofar as petitioner no. 2 is concerned stands abated. In view thereof, petitioner is permitted to delete respondent no. 2 from the array of parties. I.A. No. 3 is allowed.”

4. The seminal facts which are relevant for the present purpose are that the original plaintiff Yendru Sathiraju filed O.S. No. 175 of 1987 before the learned trial Court praying inter alia declaration of title in respect of schedule ‘A’,’B’ & ‘C’ properties and for recovery of possession from the defendants/appellants. The prayer is as follows:­ “18. Plaintiff therefore prays that the Hon’ble Court may be pleased to pass a decree in his favour:

6. The defendants/appellants preferred Appeal no. 1146 of 1996 before the High Court (and cross objections were filed by the plaintiffs/respondents herein), both came to be dismissed and a judgment and decree of the trial Court came to be confirmed by the High Court vide judgment dated 22 nd November, 2005.

7. It reveals from the record that the defendants/appellants jointly filed SLP(C ) No. 9401 of 2006 before this Court on 30 th March, 2006. At the same time, plaintiffs/respondents also preferred SLP (C ) No. 19919 of 2006 against the rejection of suit schedule ‘C’ properties. The factum of the death of appellant no. 2 was brought to the notice of this Court on 7 th May, 2007 and learned counsel sought time to bring on record his legal representatives but on failure to bring on record the legal representatives of the appellant no. 2, the Chamber Judge vide order dated 24th July, 2009 pleased to treat the special leave petition/appeal as abated so far as appellant no. 2 is concerned and this Court vide order dated 6 th September, 2010 rejected the application filed to implead the legal representatives of appellant no. 2 as proforma respondents. Further, it was specifically 5 observed that the consequence of the abatement of the appeal qua the appellant no. 2 was left open for consideration at the time of final hearing of the appeal.

17. The question arises in reference to the effect of abatement qua the appellants(plaintiffs or defendants), as the case may be, where the decree is joint and indivisible, the appeal against the other defendants will be proceeded with and in the event of appeal to succeed, there will be two mutually inconsistent/contradictory decrees and more particularly when the suit has already been decreed qua one defendant and the suit would stand dismissed qua the other defendants, in such a given situation, tests have been laid down by this Court to determine as to whether or not to proceed with the appeal.

20. It was further considered in Budh Ram and Others Vs. Bansi and Others 2010(11) SCC 476 and the principle, 13 therefore, emerges is to test whether the judgment/decree passed in the proceedings vis­à­vis the remaining parties would suffer from the vice of contradictory or inconsistent decrees inasmuch as the two decrees are incapable of enforcement or would be mutually self­destructive and that the enforcement of one would negate or render impossible the enforcement of the other.

22. If the instant appeals were to be allowed, the same would result in a situation where the enforcement of the two decrees would be in executable and the enforcement of one would negate or render impossible the enforcement of the other and to further simplify, the plaintiffs/respondents would be entitled to the share of the appellant no. 2(defendant no. 2) in the suit schedule ‘A’ and ‘B’ properties and there is no way he could enforce the same without negating the enforcement of the other decree viz. dismissal of the suit qua appellant nos. 1 & 3(defendant nos. 1 &

26. We find substance in the preliminary objection raised by the respondents and both the appeals stand abated and accordingly dismissed.

27. Pending application(s), if any, stand disposed of.