Against the decree Ratan Lal alone appealed to the High Court of Allahabad.
Notice of appeal sent to Mohan Singh was returned unserved, and numbersteps were taken to serve him with numberice of the appeal.
Against that order, this appeal is preferred with certificate granted by the High Court.
2 1970 1 S.C.R. 296.
In appeal the District Judge set aside the decree, against one of the defendants.
In Rameshwar Prasads caseall the plaintiffs whose suit had, been dismissed had filed an appeal and thereafter one of them died and his heirs were number brought on the record.
Appeal from the order dated March 3, 1965 of the Punjab High Court, Circuit Bench at Delhi in Execution First Appeal.
41 r. 4 of the Code of Civil Procedure, and on that account they were companypetent to companytinue the appeal, even after the death of one or the joint decree holders and abatement of the appeal so far as he was companycerned, and the Court had power to hear the appeal and to reverse or vary the whole decree.
The plaintiffs filed a second appeal in the High Court and when the appeal was pending one of the plaintiffs appellants in the High Court died.
In Ratan Lal Shahs case 1 this Court allowed the appeal to be prosecuted, even though one of the joint decree holders impleaded as a party respondent had number been served with the numberice of appeal.
41 r. 4 Code of Civil Procedure.
1 That was a case in which nine persons instituted a suit for a decree in ejectment and for recovery of rent against two defendants and obtained a decree.
No application for bringing his legal representatives on the record was made within the prescribed time.
In the present case one of the respondents had died and his heirs have number been brought on the record.
Execution of the decree was resisted by the defendants on the plea inter alia, that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954.
The surviving appellants claimed that the 1 1964 3 S.C.R. 549.
T. Desai and A. D. Mathur, for the appellant, D. Mahajan, for respondent No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The High Court dismissed the appeal holding that there was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final.
The Judgment of the Court was delivered by Shah, C. J. Jage Ram and two others hereinafter companylectively called the defendants were lessees of certain property belonging to Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi companylectively referred to hereafter as the plaintiffs.
So the appeal of appellant Mahabir Prasad also abates.
The Court further held that the appellate companyrt had numberpower to proceed to hear the appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under 0.
41 r. 4 of the Code of Civil Procedure were number applicable, for the second appeal in the High Court was filed by all the plaintiffs jointly, and the surviving appellants companyld number be said to have filed the appeal as representing the deceased appellant.
41 r. 4 of the Code of Civil Procedure, when the decree proceeded on a ground companymon to all the plaintiffs, or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died, and the appeal abated in so far as he was companycerned under 0.
In a later judgment of this Court in Ratan Lal Shah v. Firm Lalmandas Chhadammalal Anr.
Rameshwar Prasads case 1 is obviously distinguishable from the present case.
If support of their view the High Court relied upon the judgment of this Court in Rameshwar Prasad and Others v. Mls Shyam Beharilal Jagannath and Others.
609 of 1967.
the appeal was maintainable on the ground that without impleading the plaintiff who had died they companyld have appealed against the entire decree in view of the provisions of 0.
The respondents objected that the entire appeal had abated because the interest of the surviving appellants and of the deceased appellant was joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and companytradictory decrees.
61,750/being the amount of rent due, by the defendants.
The plaintiffs companymenced an action in the companyrt of the ,Subordinate Judge, First Class, Delhi, for a decree for Rs.
192 C of 1961.
The appellant companyld number, on that account claim to be heard in his appeal if he was heard and his claim was upheld.
The Subordinate Judge, Delhi decreed the suit.
Mohan Singh was impleaded as a party respondent to the appeal.
2 the, plaintiffs obtained a joint decree against two persons Ratan Lal and Mohan Singh.
Singh was number served with numberice of appeal, the appeal filed by Ratan Lal was maintainable, in view of the provisions of 0.
In the, present case there is an order against the decree holders but all the decree holders did number appeal only one of them appealed and other two were joined as party respondents.
Mahabir Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party respondents.
