P L D 1970 Dacca 54 (PLP)

Now the question is whether the appeal has abated in respect of the deceased respondent alone or as a whole. Order XXII, rule 4 of the Code of Civil Procedure is as follows :‑ "(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf shall cause the legal representa tive of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant." It is, therefore, clear that in the facts and circumstances of this case, the suit has abated as against the deceased defendant. That being the position, it is argued by Mr. Nurul Huq Bhuiyan that a well recognised judicial principle is that a Court does not pass. inconsistent decrees and in this case if the appeal is considered` on merits it might give rise to inconsistent and conflicting` decrees. This proposition of law is not contested by Mr. Nasiruddin. His argument, however, is that in this case there is no possibility of inconsistent decrees and as such appeal as a whole has not abated. In the case of Arjan Mirdha and another v. Kali Kumar Chakrabutty and others (A I R 1923 Cal. 294), it has been held that where during the pendency of an appeal by the defendant against a decree for joint possession of land, one of the plaintiffs‑respondents dies and his heirs are not substituted within the time allowed by law, the appeal abates not only against the deceased respondent but also against all other respondents. In the case before me, it will be seen that the plaintiffs claimed barga produce from all the defendants. The trial Court decreed the suit. The Court of appeal below reversed that decree. The position, therefore, is that the defendants are not liable to make over the barga produce to the plaintiffs. As a result of the abatement the decision that the plaintiffs are not entitled to realise the barga produce from defendant No. 1 has become final. The appellate order is founded on the finding that the defendants are not bargadars. If it is held that the appeal is maintainable even in these circum stances, the possibility of there being inconsistent decrees, cannot be eliminated inasmuch as, the appeal may be allowed only if the finding that the defendants are not bargadars is upset. The g inconsistency will be this that the defendant No. l in respect of whom the order of the learned Subordinate Judge has become final, will be held to be a lessee and the other defendants will be held to be bargadars on the same evidence. In the case of Kamala Prosad Sukrd v. Chandra Nath Pramanik and others (A I R 1928 Cal. 180) it has been held that in an action for mesne profits against the trespassers while it is open to the plaintiff to proceed against one or some or all of several co- trespassers at his own choice, once a decree has been obtained, it is the decree in its entirety that may be challenged on appeal and not otherwise. On these findings the appeal has been held to be not maintainable. Mr. Nasiruddin, however, urges that the defendants 2 and 3 are the sons of defendant No. 1 and as such the heirs of the deceased defendant being on record already the appeal as a whole will not abate. In support of this contention he has placed his reliance on the case of Arbab Said Khan and others v. Arbab Sarwar Khan and others (P L D 1951 Pesh.20). In that case, the only legal repre sentative of the deceased defendant was already on record and as such it was held that the suit would not abate. In the case before me, there is no assertion to the effect that the two sons who are on record are the only heirs of the deceased defendant. There is no application to that effect. The case relied on by learned Advocate, therefore, is of no assistance to him. This point came up for decision before a Full Bench of the Oudh Chief Court consisting of Thomas, C. J., Bennett and Ghulam Hasan, JJ. in the case of Ghulam Abbas and others v. Prince Safdar Jah Zahid Ali Mirza and others (A I R 1941 Qudh 219). In that case it was observed as follows "Abatement of suits and appeals as contemplated by the Civil P. C. is based on the principle of forfeiture of rights. The law imposes a penalty upon parties guilty of laches or negligence in the shape of abatement if they fail to take prompt steps to implead the legal representatives of deceased parties on the records so as to effectually continue the proceedings. 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. All the creditors were jointly interested in defeating the application of the landlords and the order passed by the Special Judge on the objection of some of them was in favour of all of them, and unless the whole appeal abates, the result will be two inconsist ent and contradictory orders." The learned Judges then proceeded to say "We are therefore of opinion that the interests of the creditors in defeating the application of the appellants were joint and indivisible and the interests of the deceased creditor cannot be separated from those of the rest and that the heirs of deceased creditor were necessary parties. We are therefore constrained to hold that the appeal has abated as a whole otherwise it would lead to conflicting and inconsistent decisions with regard to the same subject‑matter." In the case of Sheoram and another v. Prem Shankar and others (A I R 1954 All. 436) it was observed as follows "The decree for possession stood jointly in favour of all the four appellants and if the appeal has abated against one of them, the effect of it would be that the decree passed by the two Courts below in favour of the deceased respondent would stand intact and would not be affected by the result of this appeal. If the appeal against the remaining respondents is allowed, it would result in inconsistent decrees, one standing in respect of all the plots in favour of the heirs of the deceased respondent against whom the appeal has abated and another against the remaining respondents, in favour of the appellant. The principle guiding the abatement of an appeal in part or as a whole is that the decision of the appeal should not result in two inconsistent decrees." In the case of Iman All Halsana and others v. Furkun All Mondal (P L D1963 Dacca 3), a Division Bench of this Court consisting of Akbar and Asir, JJ, expressed the same view. After considering the relevant provisions of law, Akbar, J. who delivered the judgment observed as follows "No doubt, under Order XLI, rule 14 (3), the appellate Court in a proper case, can dispense with service of notice of appeal upon legal representatives of any person deceased. But the appellant must ask the Court to exercise this power under Order XLI, rule 14 (3). In this case, the contesting defendant No. 1 who is appellant No. 1 nor was there an application under Order XLI, rule 14 (3), which enables the Court in a proper case to exempt service of notice upon a particular party. Hence the decree as passed against defendant No. 1 stands. If at this stage by exercising power under Order, XLI, rule 4, we reverse the entire decree, we shall be trenching upon other provisions of the Code. We think that Order XLI, rule 4, should not be applied to enable the litigants to ignore the other provisions of the Code. We, therefore, respectfully agree with the observations of the Full Bench of the Patna and Lahore High Courts, that Order XLI, rule 4, cannot override or create exceptions to Order XXII, rules 3 and

11. Furthermore, in our opinion, sub‑rule (4) of rule 4 of Order XXII, does not help the appellants in this case. In these circumstances, we hold that the provisions of Order XLI, rule 4 cannot be applied to this case." The learned Judges thereafter observed "Now, there is no material before us to show that for good and sufficient reasons the heirs of appellant No. 1 could not be substituted. In these circumstances we are not inclined to exercise our power under Order XLI, rule 33; to deprive the respondents of a very valuable right which accrued to them entirely due to the laches of the other side. Hence, in our opinion, this preliminary objection must succeed and it must be held that the appeal as a whole has abated." It will, therefore, be seen that the view taken by me that the, appeal as a whole has abated finds support on the principles laid down in the decisions referred to above. Reliance was placed by Mr. Nasiruddin on section 37 of the Contract Act and section 306 of the Succession Act. These provisions are of no avail to him. Section 37 of the Contract Act provides inter alia, that the promises bind the representatives of the promisors before performance, unless a contrary intention appears from the contract. Section 306 of the Succession Act, broadly speaking, provides that demands and rights of action of or against the deceased survive to or against executor or administrator of the deceased except in certain specified cases. On merits also, appellants do not appear to have any case. It appears from judgments of the Courts below that the question for determination of the Courts was as to whether or not, the defendants were bargadars of the plaintiffs. The learned Subordinate Judge who heard the appeal reached the conclusion in the following terms "So considering all facts and circumstances of the case I find that the defendants were not bargadars under the plaintiff: It is inconceivable why the defendant should enter into any such arrangements with the plaintiff to cultivate the suit land on condition of delivering molasses to the plaintiff, had it been a fact that the defendants took the suit land on bhag. In case of bhag settlement what ordinarily happens is that the cultivating bagadar delivers to the owner of the land half of the raw produce but it is merely found that cultivating tenant deliver finished product as share of bhag produce, unless it is a fact that suit land is given on certain rights other than bhag." In arriving at this finding the learned Subordinate Judge considered elaborately the evidence adduced by the plaintiffs and the defendants. Mr. Nasiruddin concedes that there is evidence in support of this finding. On a perusal of the discussion of the evidence in this behalf I find no reason to upset this finding of fact. Having found that the defendants are lessees the learned Subordinate Judge has rightly held that the plaintiffs are not entitled to realise more than double of the rents payable by the plaintiffs to their landlords. In this case the learned Judge has found on admission of the plaintiffs that they paid Rs. 20 and odd as rents of the land in question to their landlords. That being so, the plaintiffs are not entitled to claim more than Rs. 40 as rent of the land per kear. The price of the molasses already delivered has been found to be much in excess of this amount. The defendants are not liable to pay any further amount to the plaintiffs by reason of the provisions of section 63 of the Sylhet Tenancy Act. This second Appeal is, therefore, concluded by findings of fact and must be dismissed. For the reasons stated above, the appeal is dismissed with costs, and judgment and decree of the Court of appeal below are affirmed. A. E./s. A. H. Appeal dismissed.