It follows that r. 4 of O. XLI would number be available to the surviving plaintiffs at that time.
Further, the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an.
These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree.
2 the District judge set aside the decree for ejectment against defendant No.
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.
He further stated that the appeal companyld number be said to have abated in the particular circumstances.
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.
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.
Appeal by special leave from the judgment and decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No.
It is against this decree that the nine original plaintiffs filed the second appeal in the High Court on February 29, 1952.
3, died on September 8, 1955.
Mr. 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.
At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath.
3 and 11 of O. XXII of the Code of Civil Procedure, hereinafter called the Code, 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.
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 plaintiffsappellants 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.
On September 8, 1958, an affidavit was filed by Suraj Prasad Misra pairokar of the appellants.
The Court allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint Hindu family and other relevant facts.
Bhagwati Prasad, appellant No.
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 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.
The legal representatives companyld number have taken advantage of r. 4 of O. XLI.
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.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, for the appellants.
Kedar Nath, appellant No.
A rejoinder affidavit was then filed by Sri Narain, general agent of the appellants stating that the aforesaid statements in the companynteraffidavit were misleading and irrelevant and re affirming 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.
His widow, Remeshwari Devi, was brought on the record in his place.
9 also died on July 2,1956.
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 Court 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 placec of Kedar Nath.
These two applications were dismissed on May 1, 1957, with the result that the appeal stood abated as against Kedar Nath.
Para 9 of the Affidavit stated that Lala Ram Chandra Prasad, appellant No.
On appeal by defendant No.
448 of 1952.
In view of rr.
The suit for ejectment was decreed against both the defendants and for arrears of rent against defendant No.
577 of 1961.
I. 1963.
B. Agarwala, and J. P. Goyal, for the respondent No.
May 3 The judgement of the Court was delivered by RAGHBAR DAYAL J. The facts leading to this appeal, by special leave, are these.
2 and companyfirmed the rest of the decree against defendant No.
The second appeal filed in the High Court 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.
I was the tenant inchief who had sub let the premises to defendant No.
Nine persons, including Kedar Nath, instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant No.
It is against this decree that this appeal has been filed after obtaining special leave.
