P L D 1954 Lahore 461 (PLP)

KATKAUS, J.‑One Nur Din, a faqir by caste, resident of Fatowal, Tehsil Shakargarh in the Sialkot District filed a suit against some of the proprietors of that village for a perpetual injunction restraining them from interfering with his possession of shamilat land measuring 11 kanals and 17 marlas. The basis of the claim as stated in the plaint was that he had been in possession of this land since long and the defendants wanted to dispossess him. In reply the defendants stated that sometime before the suit they had given the land to the plaintiff for occupation in lieu of service to a takia in the village, but that he had given up service and had also relinquished the land. The only issue framed in the case was whether the plaintiff had a right to the possession of the land. The plaintiff stated as a witness that he was the fagir of the takia and as such entitled to the possession of the land in lieu of service. The trial Court came to the conclusion that the plaintiff had a right to remain in possession as long as he served the takia and that in fact he was serving it. The suit was decreed. On appeal a question was raised before the learned Senior Civil Judge as to whether the suit should have been referred to the Revenue Court under the proviso to section 77 of the Punjab Tenancy Act. This plea was rejected. On the merits, the learned Senior Civil Judge came to the conclusion that the defendants had no right to eject the plaintiff. The defendants have filed the present appeal to the High Court. During the pendency of appeal Nur Din died. The appellants filed an application for bringing the legal representatives of the deceased on the record and now Nur Din is represented in this appeal by his sons, daughters and other heirs. Learned counsel for the appellants has argued only one point. He has nothing to say on the merits of the appeal. He contends, however, that as the action was based on the personal right of Nur .Din to possession in lieu of service, the cause of action has terminated on Nur Din's death, and the suit has abated. The appeal should, according to him, be allowed and the suit dismissed. Assuming that the suit was based on the personal right of the deceased to Posses sion, the broad question for determination is: "What is the effect of the death of a party after a decree in his favour on the basis of a personal right and during the pendency of an appeal against the decree? Three subsidiary questions arise:‑ (1) Does the suit abate?' (2) Does the appeal abate? (3) Is the decree liable to be set aside on the ground that it is in a personal action and on death does not pass on to his heirs? Connected with these is the question as to the Court by which the above‑mentioned questions have to be decided. I shall take up these questions seriatim. As regards the first question learned counsel for the appellants contends that the suit has abated for the cause of action does not survive the death of Nur Din. He relies on the principle that an appeal, is only a continuation and in fact a rehearing of the suit, and urges that if a decree could not be granted now the decree of the trial Court should not be allowed to stand. He says the position in appeal is as if the appellate Court were to grant a decree now to the deceased plaintiff. It is correct that if the plaintiff died during the pendency of the suit in the lower Court the suit would have abated (assuming it to be a personal action). But I have no doubt that a question of abatement of suit after a decree has been passed in the plaintiff's favour does not arise. There are two simple answers to the argument of learned counsel for the appellants. The first is that there is no pro vision in the C. P. C. under which a suit may abate during the pendency of the appeal. Order 22, C: P. C. provides only for the abatement of any proceeding during its pen dency and in this respect appeals stand on a separate foot ing from suits in the original Court. The rules in Order 22 apply originally only to suits and to the death of plaintiff and defendant. By rule 11 when they are to be applied to appeals to words 'appellant' and `respondent' are substituted for 'plaintiff' and defendant' and the word 'appeal' is sub stituted for the word 'suit'. The result is that a suit can only abate during its pendency and similar is the case with an appeal. This will be clear from a consideration of the various rules 4f Order

22. Rule 1 runs:‑ "The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives." For an appeal we substitute the words provided by rule

11. It will read:‑ "The death of an appellant or respondent shall not cause the appeal to abate ............ The rule applicable to the present case is

4. It runs:‑ 4. "(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 representative 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. If we read respondent in place of defendant we have to read appeal in place of suit and the abatement which tan take place is only of the appeal and not of the suit. A rule which deserves particular attention in this connec tion is rule

6. It runs:‑ "Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pro nouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place." According to this rule an abatement of a suit cannot take place after the conclusion of hearing in the trial Court though death takes place before judgment. That would) mean that after conclusion of hearing of a proceeding the question of its abatement does not arise. It is to be noted that this rule applies "whether the cause of action survives or not." Suppose in this case death occurred after conclusion of hearing and before judgment. Could the suit abate? The words of the rule are imperative: "There shall be no abatement." The position cannot be worse if the party dies after getting a decree. The use of the words "whether cause of action survives or not" clearly indicate that the Legisla ture does not at all visualize abatement of a suit after con clusion of hearing. In the conclusion which I have reached I am supported by a Division Bench judgment of the Allah abad High Court reported as Sunder Pande v. Mussammat Kumari (I L R.41 All. 283.), the facts of which are parallel to the facts of the present case. Learned counsel for the appellants has relied upon Ramsarup Das v. Rameshwar Das (A I R 1950 Patna 184,), a case in which in similar circumstances an appeal was allowed on the ground that the suit had abated by the death of the plaintiff after a decree in his favour and during the pendency of the appeal. There is no discussion in the judgment as to whether a suit can abate after decree. The only question discussed was whether the right of suit was personal to the deceased or not. The learned Judges held that the suit became infructuous on the death of the plaintiff and on this ground allowed the appeal. With all respect I would agree with I L R 41 All.

283. I may also point out that in Kalloo Chaudhri v. Ramzan (A I R 1943 Oudh 14,), in similar circumstances, the appeal of the defendant against the decree (and not the suit) was held to have abated. My second answer to the argument of learned counsel is the well‑established proposition that when a personal cause of action matures in a money decree the benefit of the decree passes to the heirs at the death of the decree‑holder. In the present case the decree (except in so far as it is for costs, a matter which I am leaving out of consideration from this discussion) is not for money, but those cases are a reply to the argument of learned counsel that for the purpose of abatement an appeal is only a rehearing of the suit and the position is the same as if a decree were to be passed in favour of the heirs of the deceased plaintiff respondent by the appellate Court. If this proposition were correct then the position of a plaintiff would not improve in such cases by the fact that he had obtained a decree. Suppose a plaintiff obtained a money decree in a suit for damages for a personal wrong and during the pendency of an appeal by the defendant he died. If the argument of learned counsel were to be accepted the appeal should be allowed and the decree set aside, for if the plaintiff had died during suit, a decree could not have been passed in his favour. But this cannot be done. It is not open to serious doubt that after a money decree has been obtained in a personal action, death of the plaintiff does not make any difference and the decree which becomes a part of the estate of the deceased will pass on to his heirs. Reference may be made in this connection to Gopal v. Ram Chandra (I L R.26 Bom. 597.), Paramen Chetty v. Sundararaja Naick (I L R 26 Mad. 499.) Haridas Narayandas Koshti v. Jagannath Das (A I R 1939 Nag. 256.), Mahant Salig Ram v. Charan Dass (A I R 1939 Lah. 492.). In fact the proposition is not contested by learned counsel for 'the appellants. But this proposition directly negatives the claim of learned counsel for the appellant that the situation is the same as if a decree were now to be passed in favour of the heirs of the deceased respondent. The principle recognized in the above‑mentioned cases is that after a final judgment there can be no abatement. I will only refer to Mahant Salil Ram v. Charan Dass (supra).' The learned judges relied upon Muhammad Hussain v. Khushalo (I L R 9 All. 131 (F B),) wherein it has been held that "in those cases in which an action would abate upon the death of the plaintiff be fore judgment, the action would nor abate, if final judgment had been obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his legal representative." Another observation from 48 L T 907 relied upon is:‑ "We are not dealing with a right of action. Plaintiff brought his action and succeeded by a judgment of the Court." Here, there is a matter that needs clarification. The observations I have quoted would seem to lay down that the benefit of every action which has ripened into a decree would go to the legal representatives. That however is not so and the observation should be regarded as confined to cases where the personal action results in a money decree. Per sonal actions are of two kinds; those in which a specific enforcement of the right before or after its infringement is asked for and those in which a money decree is claimed. By specific enforcement I mean enforcement in the form in which the primary right exists. For instance it is the primary right of a person that he should not be defamed. If he gets a decree for an injunction restraining, the defendant from defaming him the benefit of the decree does not past to the heir. But if he has been defamed and he sues for the, damage resulting from defamation he is not enforcing the primary right. The law grants to him, on account of the infringement of his right a new right, that is, a right to damages. A decree for damages would become part of the estate of the deceased and once obtained it cannot be challenged on the ground that the plaintiff is dead. I hold that the suit does not abate. I now proceed to discuss whether the appeal abates. It is a matter of some surprise that this contention comes from learned counsel for the appellants, for if the appeal has abated it means there is no appeal before me and the decree of the lower Court stands intact. However as the matter has been argued I have to decide it. Learned counsel for the appellants refers to rule 4 which, while providing for substitution of "appellant and respondent" for plaintiff and defendant", and appeal" for "suit" does not direct that the words `right to appeal' should be substi tuted for `the right to sue'. According to him rule 4 in its application to appeal would read thus:‑ "(4) (1) Where one of two or more respondents dies and the right to sue does not survive against the surviving respondent or respondents alone, or a sole respondent or sole surviving respondent dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased respondent to be made a party and shall proceed with the appeal. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased respondent. (3) Where within the time limited by law no application is made under sub‑rule (1), the appeal shall abate as against the deceased respondent." As the words "right to sue" remain unchanged, the result would according to learned counsel be that if the right to sue does not survive the appeal will abate. It is not pos sible for me to accept that the words "righ to sue" will remain when the rules in Order 22 are applied to appeals. Although rule 11 does not provide for the changing of right to sue' into `right to appeal', such an alteration will automatically follow as pointed out in I L R 41 All. 283 and Ram Sarup v. Jagdish Narain (A I R 1934 All. 1029.). It could not have been the intention of the Legislature that if the right to sue does not survive an appeal against a decree into which that right has matured should abate. Suppose in an action for malicious prosecution a decree is granted to the plaintiff. Defendant appeals and the plaintiff respondent dies during appeal. According to the argument of the learned counsel appeal should abate leaving the money decree intact for the right to sue certainly did not survive though the benefit of the decree did. But benefit of decree is not synonymous with the original right to sue. Really, after a claim has been decreed the question of the survival of the right to sue does not arise. As will appear from the observations in A I R 1939 Lah. 492 the Court is no longer concerned with a right of action. The words "right to sue" cannot at all be read into the rules when applying them to appeals. If the words in the rule be "right to appeal", has the right to appeal survived the death of the plaintiff‑respon dent or not? What is a right to appeal? To me it appears that for the decision whether a right to appeal subsists, con siderations are different from those which arise when the survival of a right to sue is to be decided. If a plaintiff in a personal action dies after dismissal of his suit, and his legal representative files an appeal the right to appeal means the right to get the original relief claimed for the relief has been refused. But if a decree has been passed the right of the defendant to continue the appeal after death of plaintiff‑respondent during the pendency of the appeal does not came to an end by the mere fact that the original cause of action is not such as would survive the death of the plaintiff, nor even by the fact that the decree is of a kind that will not enure for the benefit of the heir. There is a decree outstanding against the appellant about which it has to be decided whether in, fact it enures for the benefit of the heir or not. The heir has to be party to the proceedings in which I will be decided whether the decree passes to the heir or not. It is obvious that it is only if in the appeal the legal repre sentative is brought on the record that this point can be decided. It should also be apparent that the defendant can contest the decree on merits only after a legal representative has been brought on the record. Suppose in an appeal against a decree of this kind the defendant‑appellant con tests the appeal on the merits and contests too that the benefit of decree can pass to the heirs. Can it be said that because he does not admit the passing of benefit under the decree to the heirs of the deceased he cannot bring them on the record? This would be to deprive him of one of his defences. It may be said that he can object to the execu tion of the decree by the heirs even if the decree is allowed to stand. Quite so, but by that time he will have lost his opportunity of a defence on the merits and if the executing Court finds that the decree has become a part of the estate of the deceased the defendant‑appellant shall be left without a remedy with respect to the merits of the decree against him. By "right to appeal" in rule 4 should be understood the right to get rid of a decree, which may affect the appellant's interests. Of course, if a decree be of a kind that it cannot possibly affect the appellant's interests after H death of the decree‑holder a right to appeal will not survive. As an instance of this decree, I array refer to the decree about declaration of membership of a biradari in Kalloo Chaudhri v. Ramzan (supra). But about a decree for an injunction I cannot say that there is no possibility of its affecting the interests of the appel lants. The decree I have to deal with is for a permanent injunction restraining defendants from interfering with plain tiff's possession. Suppose the appellant is not allowed to contest this decree on 'the merits because he concedes that its benefit does not pass to the heirs and when in the exe cution Court he objects to the execution of the decree on the ground that the heirs have no right to execute it the decision is against him. How and when should he contest the decree on its merits? Learned counsel for the appellants does not press this appeal on the merits but have to decide the question of principle involved. I would hold, therefore, that the right to appeal sur vives. I am fortified in this conclusion by A I R 1934 All. 1029. I now pass on to the third question. I have held that neither the suit nor the appeal abates. But a plaintiff who had secured a decree has died and the appellant claims that the decree being based on a personal right, the benefit of this decree does not pass to the heirs. What should the appellate Court do? As regards the merits of the appeal I have already said that the appeal does not abate and the Court should hear the appeal on the merits if the decree is of a kind that may affect the interests of the appellants. But if the appeal does not succeed on merits, should the appel late Court go into the question as to whether the interest in the decree passes to the heirs ? The ordinary rule in such cases is that a Court is only concerned with the rights of the original party. The legal representative of a deceased party cannot take pleas which were not open to the original party, and it may well be said that the pleas which were not open against the original party, should not be allowed to be raised. However, there is no bar to the appellate Court taking notice of the plea and deciding it. The power of an appellate Court are very wide as held in Maharaja Sris Chandra Nandy v. Rakhalananda Thakur (AIR 1941 PC 16) where in a decree which was valid on the date it was passed was set aside on the ground that after the decree a law had been enacted with retrospective effect. Of course, ordinarily the Court will leave this question to be decided by the executing Court. It is to be observed that the question which arises on this plea will be altogether new and would ordinarily have to be decided after taking of evidence. While, therefore, I would not hold that there is any bar to the jurisdiction of the Court to take notice of this plea, the matter will be gone into by the appellate Court only in excep tional circumstances. My conclusions are that neither the suit nor the appeal has abated. The question whether the benefit of the decree passes to the legal representatives shall have to be decided by the executing Court. This appeal is dismissed with costs. K. M. A. Appeal dismissed.