P L D 1969 Dacca 649 (PLP)

The position, therefore, is that by reason of the death of plaintiff‑respondent No. 6 Aminulla, and failure to substitute his, heirs, the decrees of the Courts below must stand. If we proceed to hear the appeal on merits, we may hold that the decree obtained by other plaintiffs in respect of the self‑same suit land cannot be sustained. In that case there would be clearly a situation in which there would be two inconsistent decrees. We are, therefore, of opinion that there is possibility of two inconsistent decrees. The principle that in case of likelihood of two inconsistent decrees, the appeal as a whole abates is well recognised. The case of Alep Shah Fakir v. Muhammad Amud Ali Munshi (7 D L R 630), has been relied upon by learned Advocates for both the parties. In that case Akbar, J., as his Lordship then was, observed as follows: ‑ "Now, one of the defendants has preferred this second appeal. During the pendency, of the appeal plaintiff No. 2 died. His heirs and legal representatives were not substituted in his place within time and the appeal abated against them. The application for setting aside the abatement was also rejected. Thus, there was no compliance with the mandatory provisions of Order XXII of the Code. Now, Order XLI, rule 33 of the Code was not meant to negative the provisions of Order XXII. It cannot be said that in every case failure to make an application under Order XXII can be made good by resorting to Order XLI, rule 33 of the Code. So in my opinion Order XLI, rule 33 is not applicable to the present case. Now, I have to see whether independently of Order XLI, rule 33, this appeal can go on in the absence of the plaintiff -respondent No.

2. As stated above, the suit is one for declaration of title and recovery of possession, which has been decreed by the Courts below. Thus, there is a joint decree in favour of two plaintiffs. If the present appeal is allowed to go on and should it succeed, the resulting position would be that there will be two conflicting decrees which will certainly lead to an anomalous position. Hence, in such cases, where there is likelihood of a conflict of decrees, the appeal must be treated as to have abated in its entirety. I am therefore of opinion that this appeal must be treated as having abated on the failure of the appellant to bring the heirs and legal representatives of the plaintiff‑respondent No. 2 on record within the time and that the whole appeal must therefore fail." I would respectfully say that the observation quoted above gives a complete picture of the law on the point. It is stated that Order XLI, rule 33, of the Code cannot negative the provisions of Order XXII of the Code, which is a mandatory one. It has been further held that in case of the likelihood of two conflicting decrees, the appeal as a whole would abate in case, of non‑substitution of the hers of a party. In Alep Shah's case referred to above, it will further be seen that plaintiff No. 2 died after having obtained a joint decree. In the case before us also one of the plaintiffs (No. 6) who obtained a joint decree died and his heirs were not brought on record. Although the Registrar of the Court made the order on 12‑6‑64, no effort was made by the appellant for setting aside that order of abatement and substitution of the heirs of the deceased‑respondent. Since the plaintiff No. 6 obtained a joint decree, there is a possibility of conflicting decrees in this case as was found in the case of Alep Shah. In these circumstances, it is clear that this appeal has also abated as a whole. This view is supported by the decision of a Division Bench of this Court in the case of Iman Ali Halsana and others v. Furkan Ali Mondal (P L D 1960 Dacca 3). In the case of Haji Asmat Ali Khan and others v. Municipal Commissioners of Madaripur Municipality and others (P L D 1960 Dacca 821) a Division Bench consisting of Akbar and Asir, JJ., reaffirmed the decision referred to above. In this case the Municipal Commissioners of Madaripur, owned a cattle market and at an auction sale, the bid of the defendant No. 1 was accepted. Later other defendants also paid an amount alleging that defendant No. 1 acted for all of them. Ultimately however the defendants failed to pay the balance of the amount settled. The Municipality therefore instituted a suit for recovery of the amount with interest. The suit was decreed by the trial Court against all the defendants. As against the said judgment and decree an appeal was preferred to this Court. During the pendency of that appeal, the appellant No. 12 died and his heirs were not brought on record within 90 days. That was found by the first appellate Court to be a case of partial abatement of the appeal but this Court held that in such a case the appeal as a whole will abate. The learned Judges observed: "The decree in this case was joint and indivisible. Hence due to partial abatement of the appeal against one of the appellants the appeal will abate in its entirety because the joint decree could not be set aside against the remaining 13 appellants and allowed to stand against one who had died. This would give rise to conflicting decrees." In that case an appellant died. In the case before us a respon dent has died. But the principle on which Asmat Ali Khan's case was decided is that there was the likelihood of conflicting decrees if a part of a joint decree was set aside. Therefore, in this case also we are of opinion that there is no escape from the position that the appeal has abated in its entirety. We may also refer to the decision in the case of Arjan Mirdha and another v. Kali Kumar Chakrabutty and others (A I R 1923 Cal. 294). In that case, during the pendency of an appeal by the defendant against a decree for joint possession of land, one of the plaintiffs‑respon dents died and his heirs were not substituted within the time allowed by law and it was held the appeal abated not only against the deceased‑respondents. Similar view was expressed in the case of Kamala Prasad Sukul v. Chandra Nath Pramanik and others (A I R 1928 Cal. 180). In the case of Ghulam Abbas and others v. Prince Saffdar Jah Zahid Ali Mirza and others (A I R 1941 Oudh 219) a Full Bench of that Court 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 record 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 inconsis tent and contradictory orders." The learned Judges then observed: "We are therefore of opinion that the interest 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 the 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." It was found in the case of Sheor'am and another v. Prem Shankar and others (A I R 1954 All. 436) that a decree for joint possession cannot be interfered with if one of the respondents dies during the pendency of an appeal. In such a situation it was held that the appeal as a whole would abate. The learned Judges observed: "The decree for possession stood jointly in favour of all the four appellants and if the appeal has stated 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 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." The observation quoted above fully applies to the case before us. We have therefore reached the irresistible conclusion that the appeal in this case has abated as a whole. Mr. S. A. Chowdhury argues that there is no possibility of conflict in this case for the judgment in favour of the respondent No. 6 is, according to him, a nullity, for that was given on law which was already amended. The position is that if a Court passes a judgment and decree whether on a wrong interpretation of law or on a non‑existent law that decree remains in tact until set aside by a superior Court. Therefore, we cannot proceed on the assumption that decree was a nullity as we are invited to do by Mr. Chowdhury. The question of abatement is to be decided independently of the merits of the appeal. This conten tion of the learned Advocate for the appellant has also no substance. For the reasons stated above, the appeal, has abated as a. whole. There will be no order as to costs. A. H. KHAN, J.‑I agree. K. B. A. Appeal, held, abated.