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Petitioner: HAJI ASMAT ALI KHAN VS Respondent: MUNICIPAL COMMISSIONERS OF MADARIPUR MUNICIPALITY
P L D 1960 Dacca 821
P L D 1960 Dacca 821
Before Akbar and Asir, JJ
Haji ASMAT ALI KHAN AND OTHERS‑Appellants
versus
MUNICIPAL COMMISSIONERS OF MADARIPUR MUNICIPALITY AND OTHERS‑Respondents
First Appeal No. 154 of 1954, decided on 20th January, 1960.
Civil Procedure Code (V of 1908), O. XLI, r. 4 & O. XXII, rr. 3 & 11‑O. XLI, r. 4 does not override provisions of O. XXII-- Abatement occurring on death of one of several appellants‑Could not be ignored, overlooked onset aside by invoking aid of O. XLI, r. 4.
During the pendency of an appeal filed by defendants one of the defendant‑appellants died. As no legal representa tive of the deceased appellant was brought on record within 90 days from the date of his death, an order of abatement was recorded. On the question whether as a result of the abatement, the appeal had been properly constituted it was contended that by invoking the aid of Order LXI, rule 4 of the Civil Procedure Code, 1908, the Court can set aside the decree not only against the appellants but also against the deceased defendant‑appellant:
Held, that the provisions of Order XLI, rule 4 of the Civil Procedure Code, 1903 should apply only when the provisions of Order XXII create no difficulty in the prosecution of appeals. It would be reading some thing into Order XLI, rule 4, to say that any abatement that occurs on the death of one of the appellants could be ignored or overlooked or even set aside by virtue of the provisions contained in r. 4 of O. XLI.
The decree in this case was joint and indivisible. Hence due to partial abatement of the appeal against one of the appellants, the appeal abated in its entirety because the joint decree could not be set aside against the remaining appellants and allowed to stand against one who died. Hence Order XLI, rule 4 of the Civil Procedure Code, 1908 was not applicable.
R. K. Bhattacharyya for Appellants.
P. C. Nag for Respondents.
JUDGMENT
AKBAR, J.‑This appeal by some of the defendants arises out of a suit filed for recovery of a sum of Rs. 7,000. The plaintiffs' case is as follows : The Municipal Commissioners of Madaripur own the cattle market called Char Magurua Gohata. On 23‑3‑52, an auction was held for settlement of the said gohata for the year 1952‑53 and defendant No. 1's highest bid of Rs. 11,000 was accepted by the Municipality. Out of the said amount, he paid Rs. 3,000 on 20‑4‑52. On 31‑5‑52 the other defendants paid a sum of Rs 1,000 alleging that the said bid was made by them in the name of defendant No. 1. They also filed a petition on 18‑6‑52 stating that the bid had been made on behalf of all of them and that they were jointly collecting tolls from the gohata. As they however failed and neglected to pay the balance of Rs. 7,000, the Municipality filed this suit for recovery of the said amount with interest.
2. Defendant No. 1 in his written statement, while sub stantially supporting the plaintiffs' case, claimed a deduction of Rs. 300 because, between the date of the bid and the date of the acceptance, the Municipality had collected tolls from the gohata.
3. Defendants Nos. 2 to 14 and 16 to 23 filed a joint written statement contesting the claim of the plaintiffs. They denied that the bid by defendant No. 1 had been made on behalf of all of them. According to them, as the Municipality found it difficult to realise the balance of the bid money from defendant No. 1, they claimed this amount from them on the false allegation that they had bid the gohata in the name of defendant No. 1.
4. The learned Subordinate Judge decreed the suit against all the 23 defendants.
5. Defendants Nos. 2, 4, 9, 11 to 14, 16 to 20, 22, and 23 filed this appeal. They made the other defendants respondents in the appeal.
6. During the pendency of the appeal, one of the appellants, namely, appellant No.‑ 12. Haji Labu Zamadar, died. As no legal representative of the appellant was brought on the record within 90 days from the date of his death, the Registrar of this Court recorded an order of abatement on 20‑11‑59.
7. Now the question is: Whether, as a result of this abate ment, the appeal has been imperfectly constituted.
8. Mr. Bhattacharyya the learned Advocate for the appellants has contended that, by invoking the aid of Order XLI, rule 4 of the Code of Civil Procedure, we can set aside the decree not only against the defendants who are appellants but also against the deceased defendant‑appellant.
9. Order XLI, rule 4 of the Civil Procedure Code no doubt permits a plaintiff or a defendant to appeal from the whole decree where it proceeds on a ground common to all the plaintiffs and defendants and in such a case the Court may reverse or vary the decree in favour of all the plaintiffs or all the defendants.
10. Now Order XLI, rule 4, does not override the provision of Order XXII, C. P. C., even if a party may take advantage of Order XLI, rule 4 and may file an appeal on a ground common to others with him who did not join him. But, if advantage is not taken and if all the defendants against whom a decree has been passed on a ground common to all join in the appeal, I do not see how they can claim an exemption from the operation of the provisions contained in Order XXII. That order applies to appeals and there is no exception in favour of appeals falling under Order XLI, rule 4. If then one of those who have appealed jointly dies, the immediate consequence would be abatement of the appeal so far as he is concerned. The learned Advocate has not been able to assign any reason why those persons who jointly appealed should not be bound by the provisions of Order XXII which have been made expressly applicable to appeals.
11. It would be really reading something into Order XLI, rule 4, to say that any abatement that occurs on the death of one of the appellants could be ignored or overlooked or even set aside by virtue of the provisions contained in it. The provisions of Order XLI, rule 4, in my opinion, should apply only when the provisions of Order XXII create no difficulty in the prosecution of appeals. Hence we hold that Order XLI, rule 4, is not applicable here.
12. 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 he set aside against the remaining 13 appellants and allowed to stand against one who had died. This would give rise to conflicting decrees. In these circumstances, there is no escape from the proposition that the appeal abates in its entirety due to abatement of the appeal against appellant No. 12.
13. There will however be no order as to the costs of the appeal.
ASIR, J.‑I agree.
K. B. A. Appeal held abated.