The Supreme Court held that if the interests of the co-defendants are separate, a suit will abate under Order XXII Rule 4 of CPC only as regards the particular interest of the deceased party, however If allowing the appeal against remaining respondents would result in two contradictory decrees with respect to the same subject matter, the appeal abates as whole,
The above ratio was delivered by the Supreme Court in the judgment of Sunkara Lakshminarasamma (D) By LRs. Vs. Sagi Subba Raju & Others, Civil Appeal Nos. 43804382 OF 2016 decided on 28.11.2018.
A suit was filed for partition of suit property against Defendants where the primary issue was alienation of a certain property by one Veeraswamy. The said suit was dismissed by the trial Court and confirmed by the first appellate Court. Feeling aggrieved by the judgment and decree, the unsuccessful appellants filed appeal before the High Court. The appeal was heard by the High Court and decided against the appellants herein. Thus, the appellants were compelled to approach the Apex Court.
The Respondents challenged the very maintainability of the appeal on the ground that a number of defendants were deleted from the array of parties by the appellants herein, and some of the defendants have died during the pendency of the suits as well as the first appeals and second appeals and their legal representatives were not brought on record by the appellants herein. The appellants have not bothered to bring on record the legal representatives of such deceased defendants. As a result, the decree passed in favour of the deceased and deleted defendants holding that one Veeraswamy had the right to sell the property has attained finality, and consequently the sales made in favour of such defendants (purchasers) have attained finality too. Therefore these appeals, which are pending consideration in respect of other defendants before this Court, are liable to be dismissed in view of the fact that in case any order is passed adverse to the interest of the respondents herein/remaining defendants, the same would be conflicting with the judgments and decrees which are already confirmed as against the deceased/deleted defendants.
The Apex Court observed that Order 22 Rule 4, CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. The Court held that if the interests of the co-defendants are separate, as in the case of coowners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. The Court further held that if the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died.
Laying down an objective test, the Apex Court held that the test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.