P L D 1961 (W (PLP)

"One of the tests whether an appeal as a whole has abated is whether if the appeal succeeds there will be in existence two conflicting decrees. If such be the position, then the appeal as a whole abates and not partially."

4. As against these authorities the learned counsel for the appellants has cited Santa Singh and another v. Gulab Singh and another (A I R 1928 Lah. 573) and Fazal Dad v. Nek Alam and others (P L D 1957 Lah. 430), where the question whether an appeal abates in toto on its partial abatement on account of the failure to implead the legal representatives of a deceased party was examined at length. In the Full Bench ruling Santa Singh and another v.. Gulab Singh and another it was observed by Shadi Lal, C. J., who had also decided Muhammad v. Abdullah at ah earlier date "The death of one of the respondents does not necessarily result in the abatement of the appeal in its entirety. It would depend entirely upon the nature of the suit, and if the suit, having regard to its frame and character could proceed in the absence of the deceased defendants, there is no reason why the appeal should not ordinarily proceed against the surviving respondent or respondents." Shadi Lal, C. J., further observed as follows :‑ "Now Order XXII, rule 4, sub‑rule (3) read with Order XXII, rule 11, Civil P. C., provides that where within the time prescribed by law no application is made to implead the legal representatives of the deceased respondent, the appeal shall abate as against the deceased respondent. It is true that, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement thus caused leads to an abatement of the appeal in its entirety, depends upon general principles. It the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died."

5. The following passages from Karam Khan v. Mast Ali Khan (A I R 1927 Lah. 851) and Chet Ram v. Mst. Illaicho ((1924) 26 P L R 797) were quoted with approval by Tek Chand J. in the aforesaid full Bench ruling "Whether a suit or an appeal abates, in whole or in part, depends on whether the interests of the respondents are or are not separately defined. If they are separable; the suit or appeal will abate only as regards the interest of the deceased. If they are joint, the proceedings will abate as regards the whole of the joint interest" (A I R 1927 Lah. 851). "From the authorities cited at the Bar the principle which emerges is that when the different defendants have separate rights either ascertained .or ascertainable in. the property in suit, the suit can proceed‑against those defendants who are made parties .and does not necessarily fail because some of the defendants have not been joined" [(1924) 26 P L R 497].

6. In Fazal Dad v. Nek Alam and others Mr. Justice B. Z. Kaikaus examined the question of abatement of an appeal or suit at considerable length, and on page 433 of the judgment he observed as follows :- "I will now proceed to consider the circumstances in which the abatement of an appeal against the deceased respondent will result in what is called abatement in, toto. Three grounds have generally been accepted in reported cases as leading to this result. It has been held that an appeal would abate in loto ; (1) if in the absence of the deceased respondent the appeal is not properly constituted ; (2) if a decision on the merits will result in contradictory decrees ; and (3) if in view of the decree in favour of the deceased respondent any further decree which may be passed, will be ineffective." He further observed :‑ "With respect to the first of these grounds (or criteria) there can be no two opinions. If the appeal be not properly constituted, it obviously cannot proceed. It is true that according to Order I, rule 9, Civil P. C., the non‑joinder of a party is not a ground for dismissal of the suit and the Court has to decide the rights of the parties that are before it but there are cases where the nature of the dispute between the parties necessitates the presence of a number of persons and' the matter involved is such that the right of A against B cannot be determined without at the same time determining the right of B against C. Cases of this nature are suits for partition and rendition of accounts. There tray be also cases where there 'is a joint right held by persons who in law constitute one legal entity so that they can ,only ‑sue jointly or a joint and .indivisible cause of action against more than one person. In all such cases, the absence of any party from the record may render the suit incompetent." While examining the second test, viz regarding the decrees being contradictory Mr. Justice B. Z. Kaikaus observed at page 436 of the judgment as follows :‑ "The question may now be asked : if we are dealing with judgment in personam, can decrees never be contradictory if the appeal abates against one respondent and against the other respondent the appeal is decided on the merits ? it appears to me that there will still be two kinds of cases where decrees may be said to be contradictory : (1) where there is a joint and indivisible right which belongs to a number of persons so that they can either act together, as if they constituted in the eye of law one legal person, or there is a joint and indivisible cause of action against more than one person so that the substantive law envisages only one decision of such a dispute, and (2) where the rights of parties are so inter‑linked that a decree against one party necessarily involves a determination in respect of another party also so that a relief against the living respondent necessarily involves a relief against the deceased respondent too. Decrees can be contradictory in spite of being judgments in personam, if the substantive law envisages only one deter mination of a dispute to which more than two persons are parties or if some persons together constitute a single legal entity for a particular purpose. In cases relating to class (2) the nature of the right is such that the extent of the right of A against B depends upon the extent of the right of D against C. As an example of cases of class (1), may be cited the instances of suits by joint tenants of English Law or joint promises who can only exercise their right jointly and suits for pre‑emption. Instances of the second class are suits for partition and rendition of accounts." As regards the third test the Judge criticised it by observing on page 441 of the judgment :‑ "The test of ineffectiveness of 'decree is not a proper test, for it is only in cases of discretionary relief that the question of ineffectiveness of decree can be considered and in such cases the refusal to grant discretionary relief should not be termed abatement. So the practical test for determining whether there is total abatement is whether the appeal is imperfectly constituted". In the present case neither the appeal before this Court is imperfectly constituted on account of the absence of the legal representatives of Mst. Nur Begum respondent, nor was the appear before the lower appellate Court imperfectly constituted on account of the absence of the legal representatives of Bagga respondent. Nor is there any likelihood of the litigation giving rise to contradictory decrees in the sense contemplated in the judgments cited before us. It is noteworthy that even in Allah Dad v. Nawab (P L D 1960 Lah. 277) cited by the learned counsel for the respondent, the learned Judge has considered the decrees contradictory "where the interest of the defendants in the suit or those of the plaintiffs are joint and indivisble." In the present case it cannot be said that the interests of the respondents or appellants are joint and indivisible. Bagga respondent in the appeal before the lower appellate Court held, an ascertainable share or interest in the property in suit under Customary law. The maintenance, in C consequence of partial abatement of appeal, of the decree passed against him by the trial Court could not lead to any possibility of conflicting decrees, and a decree as against him will remain enforceable, assuming the lower appellate Court reversed the decree; of the trial Court. In this view of the matter the appeal in the lower appellate Court has abated only partially, viz. to the extent of Bagga's interest in the property in suit. Similarly the decree passed in favour of Mst. Nur Begum being for a determinate share, would be enforceable whatever be the ultimate decision of the case on merits. There being no possibility of conflicting or con tradictory decrees being passed, the appeal in this Court has also abated partially to the extent of Mst. Nur Begum's share. The result is that the decree in favour of Mst. Nur Begum will be enforceable in full against the suit property and the share of Bagga defendant (deceased respondent before the lower appellate Court) under custom in the property in suit would be available in its entirety for execution of decree passed in favour of both the plaintiffs.

7. In view of the above we accept the appeal and held that the appeal before us has abated only partially to the extent of 6/16th share of Mst. Nur Begum plaintiff (deceased respondent) and the appeal before the lower appellate Court has abated partially to the extent of the share of Bagga respondent in the ,4 suit property, and remand the case to the lower appellate Court for the hearing of the appeal of the defendant‑appellants on merits subject to the limitations indicated. Costs shall abide the event. The parties should appear before the lower appellate Court on 20‑2‑

61. Counsel should be informed immediately. KAYANI, C. J.‑I agree that the appeal should be accepted and the case remanded for decision on the lines indicated by my

2. As in cases of the death of a party, the danger of passing "contradictory decrees" is frequently emphasised in support of "total abatement", I propose stating here by way of complaint that there is hardly any case of abatement where the resultant decree will not conflict with what has become final by reason of the abatement. I make this complaint because the plea of "contradictory decrees" is resorted to even after a Full Bench of five Judges had made it clear in Sant Singh v. Gulab Singh (I L R10 Lah, 7) that if the shares of the deceased and his co‑defendants were ascertained or ascertainable, the suit or appeal will proceed against the surviving defendants or respondents. Perhaps one reason for the taking of this plea is that in the past the Judges have tried to explain that in a given case the decrees would not be con tradictory, even though they were ostensibly contradictory.

3. After reading the Full Bench case, it ought to be clear that the law does not contemplate "total abatement" in any case. In the Code of Civil Procedure, 1882, section 368 provided in respect of an application for the substitution of legal representa tives that "when the plaintiff fails to make such application within time within the period prescribed therefor, the suit shall abate". Tek Chand, J. pointed out that since this was interpreted by some Judges as meaning total abatement, the Code of 1908 provided in Order XXIT, Rule 4 (3), that in these circumstances "the suit shall abate against the deceased defendant." This should have made ft clear that the suit or appeal does not abate against the other defendants, and that, consequently, there could never be a 1 case of total abatement. Shadi Lai, C. J., observed, however, that if the absence of the legal representative of the deceased res pondent prevents the Court from hearing the appeal against the respondents, then it will abate totally. The proper expression, ‑with profound respect, to be used in such cases would be "dismissal" in place of "total abatement", and that is the ex pression used by Tek Chand, J. Cases in which the Court would be so prevented have been stated as being those in which con tradictory decrees may arise or where one decree cannot be executed in face of the other, or when the suit or appeal becomes "imperfectly constituted". "There is on dispute", as Tek Chand, J. said, "as to the soundness of these principles, but it is in their application to particular cases that the Courts have materially differed."

4. What I wish to submit here is that if the law relating to abatement so clearly intended it to be confined only to the interest of the deceased party, there should be no effort on our part to find reasons for being unable to proceed with the rest of the case. On the contrary, our effort should be to proceed with it unless we face a blind alley. Other provisions in the Code also encourage us to go on if we can help it and to make things convenient for parties. Thus, Order I, rule 9, says that no suit shall be defeated by reason of the non‑joinder or misjoinder of parties, and the Court may in every suit deal with the controversy so far a regards the rights and interests of the parties actually before it. It is only if these rights and interests cannot be determined in the absence of a person that he becomes a necessary party. Where, therefore, the representatives of the deceased are necessary parties, the suit or appeal will not proceed after partial abatement. Again, Order XLI, rule 4, provides that where there are more plaintiff or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree. It is true that in such a case he will have to implead the other plaintiffs or defendants as res pondents, but that is because no adjudication against them will be possible if they were not made parties.

5. Now as regards contradictory decrees, Shadi Lai, C. J., pointed out that if a sale‑deed which was sought to be impugned were in favour of four persons with ascertained shares, and one of them died, then in principle it would make no difference whether it was one sale‑deed in favour of four persons or for separate deeds, each conveying one‑fourth of the property to the four vendees respectively. These four deeds might become the subject matter of four separate suits, and some of these suits might succeed while others might fail. But although the decrees would conflict, since they relate to different portions. of the property, they are workable. It would be different, however, if different decisions were given with respect to the same matter.

6. But we may have different decisions even in respect of the same matter. Take the present case, for instance. If it is proved that.Mst. Raj Bhari died before the passing of the Shariat Act, Customary Law will apply to succession from her, if she died after the date of the Act, Muslim Law will apply. The trial Court having held that Muslim Law applies, the deceased res pondent's case will be governed by Muslim Law, but if the appeal of the reversioners succeeds, the appellants' case will be governed by custom. Will not the two decrees be contradictory ? But we can always say that the deceased's share being ascertainable, the decree which will apply to his part of the property will not clash with the decree applicable to the rest of the property each con cerning itself with its own share, though proceeding "continguously", the lion and the lamb, as it were, drinking from the same pool. This is a pleasing prospect, but it does not save a paradoxical situation from being regarded as paradoxical.

7. Jai Lai, J. to some extent tried to save the situation by pointing out that the decree of the lower Court was not a decree on merits, but because of a default in, doing something required by law. This argument, I say with respect, has great merit, for a decree does not become final until it is tested in appeal, and a decree which emerges from the dust of abatement has not been tested in appeal. That part of the property in dispute goes out of action, as though there never had been any action in respect of it. Instead of dying, that particular respondent might well have compromised with the appellant.

8. Jai Lai, J. also. pointed to a case where one of two joint executants of a bond confessed judgments and the other, who did not confess, succeeded in his defence. There will be two con tradictory decrees, but the law does not prevent them from coming into being.

9. In a recent case Fazal Dad v. Nek Alam (P L D 1957 Lah 430) Kaikaus, J. examined the situation with a fresh mind and devoted some thought to an effort at defining "contradictory decrees". He thought that in the Full Bench case, Shadi Lai, C. J., and Tek Chand, J. "accepted this as a good criterion"‑to dismiss the appeal if contradictory decrees arose‑while Jai Lai and Agha Haider, JJ. did not agree and they pointed out that contradictory, decrees have to be passed in some cases. In my opinion, if there was any difference in the two groups of judgments, it was based on the conception of each as to what constituted contradiction, contrariety, conflict or clash. If you apply the test of each party's respective share in the property, then in the case of a bond jointly executed by two persons, by which Jai Lai, J. illustrated his argument, the admission or denial of each executant would be confined to his own share, and the decrees would not be con flicting as they pertained to different "properties". Kaikaus, J. himself tried to resolve the difficulty by suggesting that decree will not be contradictory if the parties to the decrees be not the same, that is to say, where the judgment is in personam but even in such cases, it appeared to him that contradictory decrees might arise, as when the right is joint and indivisible, as in a pre emption suit, or where the rights of parties are so interlinked, as in suits for partnership or rendition of accounts, that a relief against the living respondent necessarily involves a relief against the deceased respondent. Having reached this stage, he observed that "the practical value of the criterion of contradictory decrees is nil, for in all cases where contradictory decrees can result, the appeal will fail because it will not remain properly constituted in the absence of the deceased respondent."

10. With great respect, I regard this as an admission that the test of contradictory decrees is no test for the reason that there is hardly any case in which the decree will not be contra dictory in the true meaning of the term, and it is futile to attempt a definition by saving either that, if the parties are different, the decrees would not be contradictory, or that if the properties are different, each decree will proceed against its own property. Had there been a law which stated that "contradictory decrees" are G illegal, it were relevant to define the expression. There was a time when it had the charm of novelty, and we invoked "general principles", which forbade us to pass contradictory decrees. Having discovered that contradictory decrees do result from certain unavoidable situations, we should not waste time over trying to discover that they are in fact not contradictory.

11. The test, therefore, is that if partial abatement results in knocking out a necessary party, without whom adjudication becomes impossible, the suit or appeal will be dismissed.

12. In the present case, on Bagga's death at the stage of first appeal, since his share in the property was ascertainable, that share became excluded from litigation, and as the trial Court had given a decree against Bagga, that part of the decree was excluded from attack in the appeal.

13. At the stage of second appeal before us since the appeal abated in respect of Mst. Nur Begum, deceased‑respondent, and since the trial Court had decreed 6/16th of the property in her favour, that share also was saved from further litigation. When the case goes back to the lower Appellate Court, the dispute will be confined to Mst. Hayat Begum's 9/16th share, less the potential share of Bagga in this 9/16th share. A. H. Order accordingly.