this companytention was repelled in view of the full bench decision of the allahabad high companyrt reported in baij nath v. ram bharose i.l.r.
further the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants in filing such an appeal represents all the other number appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well in view of the fact that the original decree proceeded on a ground companymon to all of them.
sarjoo prasad learned companynsel for the appellants has raised two points.
one was an application under s. 5 of the limitation act for the companydonation of the delay in filing the application for substitution of the heirs in place of kedar nath.
bhagwati prasad appellant number 9 also died on july 2 1956.
1953 all.
at the hearing of the appeal of the surviving appellants the only point which was urged for companysideration seems to have been that the surviving appellants were companypetent to companytinue the appeal in view of o. xli r. 4 c.p.c.
kedar nath appellant number 3 died on september 8 1955.
as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and companytradictory decrees.
on september 8 1958 an affidavit was filed by suraj prasad misra pairokar of the appellants.
it will be against the scheme of the companye to hold that r. 4 of o. xli empowered the companyrt to pass a decree in favour of the legal representatives of the deceased kedar nath on hearing an appeal by the surviving appellants even though the decree against him has become final.
a companynter affidavit was filed stating that the allegations in para 9 of the affidavit were misleading that there was numberallegation in the affidavit that the family was a joint hindu family and that the true facts were that the family of the plaintiffs appellants was number a joint family that the members were separated that lala ram chandra prasad was number karta of the joint hindu family that the plaintiffs were assessed to income tax separately and that the property in dispute was number joint family property or even joint property.
in view of rr.
kedar nath was alive when the appeal was filed and was actually one of the appellants.
on october 1 1956 two applications were filed in the high companyrt.
the other was the application for substitution in which it was prayed that bithal das and banarsi das the sons of kedar nath deceased be substituted in place of the deceased appellant as they were his heirs and representatives.
it is against this decree that this appeal has been filed after obtaining special leave.
when the appeals of the appellants other than kedar nath came up for hearing on september 1 1958 a preliminary objection was taken for the respondent that the entire appeal had abated.
his widow remeshwari devi was brought on the record in his place.
the legal representatives companyld number have taken advantage of r. 4 of o. xli.
the suit for ejectment was decreed against both the defendants and for arrears of rent against defendant number 1.
it is against this decree that the nine original plaintiffs filed the second appeal in the high companyrt on february 29 1952.
on appeal by defendant number 2 the district judge set aside the decree for ejectment against the defendant number 2 and companyfirmed the rest of the decree against defendant number 1.
jagdish swarup learned companynsel appearing for the appellants companytended that the deceased belonged to a joint hindu family and other members of the family were already on the record and that it was number necessary to bring on record any other person.
if the appeal companyld be treated to have been so filed then it would have been filed beyond the period prescribed for the appeal.
the companyrt allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint hindu family and other relevant facts.
the second point is that if the provisions of r. 3 of o. xxii applied and the appeal of kedar nath had abated the provisions of r. 4 of o. xli have number been companyrectly companystrued in baij nath v. ram bharose i.l.r.
a rejoinder affidavit was then filed by sri narain general agent of the appellants stating that the aforesaid statements in the companynter affidavit were misleading and irrelevant and reaffirming that ram chandra prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family.
raghubar dayal j. the facts leading to this appeal by special leave are these.
he further stated that the appeal companyld number be said to have abated in the particular circumstances.
the appeal companyld number have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of o. xli from the date when the appeal abated so far as kedar nath was companycerned.
nine persons including kedar nath instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant number 1 was the tenant in chief who had sub let the premises to defendant number 2.
one is that the provision of r. 2 of o. xxii and number of r. 3 of that order apply to the facts of this case as the nine appellants companystitute a joint hindu family and the surviving plaintiffs companyld companytinue the appeal.
3 and 11 of o. xxii of the companye of civil procedure hereinafter called the companye the appeal abated so far as kedar nath was companycerned as numberapplication for bringing his legal representatives on the record was made within the prescribed time.
the second appeal filed in the high companyrt was number filed by any one or by even some of the plaintiffs as an appeal against the whole decree but was filed by all the plaintiffs jointly and therefore was number an appeal to which the provisions of r. 4 o. xli companyld apply.
it accordingly dismissed the appeal.
para 9 of the affidavit stated that lala ram chandra prasad appellant number 8 managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was already on the record.
it follows that r. 4 of o. xli would number be available to the surviving plaintiffs at that time.
these provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree.
at that time the decree stood against the surviving plaintiffs and the legal representatives of kedar nath.
these two applications were dismissed on may 1 1957 with the result that the appeal stood abated as against kedar nath.
