# [1966] 3 S.C.R. 451

- **Citation:** [1966] 3 S.C.R. 451
- **Court:** Supreme Court of India
- **Decided:** 1966-02-04
- **Case number:** CIVIL APPLLATE JURISDICTION : Civil Appeal No. 425 of 1963
- **Bench:** J. C. Sifm, S. M. Sikri, V. Ramasawami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1966-3-s-c-r-451-3559
- **Pages:** 7

## Headnote

Code of Civil Pr11cedure
(Act V of 1908), 0. 41 r.
4-Abatement
of Appeal with reapect to one appellant-When operates as abatement
of entire appeal-Supreme Court Rules, 1950, 0. 16 r. 14.
The 1st respondent filed a suit against the 2nd respondent for re-
. covcry of money and in pursuance of an order of the Court directin1
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the 2nd respondent to furnish security for satisfaction of the decree that
may be passed against him, the three appellants and two others stoo~
sureties agreeing jointly and oeverally to satisfy the decree. After the smt
was decreed the first respondent applied for execution of the decree
against the sureties. The •ureties raised the pleas that the surety bond
wu not enforceable because it was not registered, and that the degree
'. holder had committed acts by which the remedy of the sureties against
judgment debtor
was impaired, but the pleas were negatived by the
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· executing court and the High Court. After the three appellants preferred an appeal to this Court, one of them died and since his legal
. representatives was not brought on record, the appeal abated, as far as he
was concerned.
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On the question whether the appeal in so far as the other two appellants were concerned also abated,
HELD : Applications to bring on record legal representatives of a
deceased appellant OT respondent were governed by 0, 16, r. 14 of the
Supreme Court Rules, 1950, and the rule applied to all classes of appeals
. including appeal<s arising from orders in execution.
Because the repre--
sentatives of the deceased appellant were not brought on record within
the time permitted by the rule and the delay in filing the petition to
bring the representatives on record was not condoned, the
appeal of
the deceased appellant abated. Since the Liability of the sureties was
joint and several, if this Court proceeds with the appeal of the other
two sureties and holds that the High Court was in error in rejecting
their contentions, there would be two inconsistent orders-one passed
by the High Court holding that the surety bond was enforceable, and
the other-of this Court that it was not enforceable. Therefore" the appeal
must be held to have abated in its entirety. [454 D; 456 B; 457 BJ
St11te of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636 nnd Rameshwar
Prasad and others v. Shanbeharl Lal, [1964] 3 S.C.R. 549, followed,
CIVIL APPLLATE JURISDICTION : Civil Appeal No. 425 of
1963.
Appeal by special leave from the judgment and order dated
April 14, 1960 of the Punjab High Court (Circuit Bench at Delhi)
. in LP.A. No. 17-D of 1960.
Gopal Singh and Amar Singh, for appellant No. 1.
J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant
No. 3.
452
SUPREME COURT REPORTS
(1966] 3 s.c.R·
Bishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury
A
for respondent No. I.
'
Mohan Behari Lal, for respondent No. 3.
S. K. Mehta and K. L. Mehta, for respondent No. 4.

## Text

,
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PANDIT SRI CHAND AND ORS.
. v.
M/S. JAGDISH PARSHAD KISHAN CHAND AND ORS.
February 4, 1966
[J. C. Sifm, S. M. SIKRI AND V. RAMASAWAMI, JJ.]
Code of Civil Pr11cedure
(Act V of 1908), 0. 41 r.
4-Abatement
of Appeal with reapect to one appellant-When operates as abatement
of entire appeal-Supreme Court Rules, 1950, 0. 16 r. 14.
The 1st respondent filed a suit against the 2nd respondent for re-
. covcry of money and in pursuance of an order of the Court directin1
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the 2nd respondent to furnish security for satisfaction of the decree that
may be passed against him, the three appellants and two others stoo~
sureties agreeing jointly and oeverally to satisfy the decree. After the smt
was decreed the first respondent applied for execution of the decree
against the sureties. The •ureties raised the pleas that the surety bond
wu not enforceable because it was not registered, and that the degree
'. holder had committed acts by which the remedy of the sureties against
judgment debtor
was impaired, but the pleas were negatived by the
D
· executing court and the High Court. After the three appellants preferred an appeal to this Court, one of them died and since his legal
. representatives was not brought on record, the appeal abated, as far as he
was concerned.
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G
H
On the question whether the appeal in so far as the other two appellants were concerned also abated,
HELD : Applications to bring on record legal representatives of a
deceased appellant OT respondent were governed by 0, 16, r. 14 of the
Supreme Court Rules, 1950, and the rule applied to all classes of appeals
. including appeal<s arising from orders in execution.
Because the repre--
sentatives of the deceased appellant were not brought on record within
the time permitted by the rule and the delay in filing the petition to
bring the representatives on record was not condoned, the
appeal of
the deceased appellant abated. Since the Liability of the sureties was
joint and several, if this Court proceeds with the appeal of the other
two sureties and holds that the High Court was in error in rejecting
their contentions, there would be two inconsistent orders-one passed
by the High Court holding that the surety bond was enforceable, and
the other-of this Court that it was not enforceable. Therefore" the appeal
must be held to have abated in its entirety. [454 D; 456 B; 457 BJ
St11te of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636 nnd Rameshwar
Prasad and others v. Shanbeharl Lal, [1964] 3 S.C.R. 549, followed,
CIVIL APPLLATE JURISDICTION : Civil Appeal No. 425 of
1963.
Appeal by special leave from the judgment and order dated
April 14, 1960 of the Punjab High Court (Circuit Bench at Delhi)
. in LP.A. No. 17-D of 1960.
Gopal Singh and Amar Singh, for appellant No. 1.
J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant
No. 3.
452
SUPREME COURT REPORTS
(1966] 3 s.c.R·
Bishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury
A
for respondent No. I.
'
Mohan Behari Lal, for respondent No. 3.
S. K. Mehta and K. L. Mehta, for respondent No. 4.
The Judgment of the Court was delivered by
Shah, J. Messrs Jagdish Pershad Kishan Chand-hereainafter called 'the first respondent'-<:ommenced suit No. 265 of
1952 in the Court of the Senior Subordinate Judge, Delhi, against
the second respondent for a decree for possession of goods hypothccated to them by Messrs. Mudgal Motors Ltd.,-second respondent in this appeal. The first respondent filed another suit
No. 43 of 1952 for a decree for Rs. 42,914/10/- being the amount
due at the foot of the hypothecation account, and for sale of the
goods in satisfaction of the amount due. The two suits were
consolidated for trial. In suit No. 43 of 1952 the first respondent
applied for appointment of a receiver and the Court directed the
second respondent to furnish security in the sum of Rs. 50,000/-.
Pursuant to this order five persons stood sureties for satisfaction
of the decree. It was recited in the surety bond dated April 21,
1953, that the five sureties mortgaged the properties specified in
the Schedule annexed thereto and jointly and severally agreed that
if any decree was passed against the second respondent they shall
comply with the same and in default the amount payable under
the decree but not exceeding Rs. 50,000/- shall be realized from the
properties mortgaged. This surety bond was not registered. Out
of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.
On January 14, 1955, the second respondent was ordered to
be wound up in a petition presented by the first respondent to
the District Court, Delhi. Suit No. 265 of 1952 was therafter
withdrawn and in suit No. 43 of 1952 a decree was passed against
the second respondent for Rs. 42,914/10/- with costs and future
interest at six per cent per annum. The first respondent then applied
to execute the decree against the sureties. The sureties objected
to the execution of the decree against them on the grounds, inter
alia, that the surety bond not being registered as required by law,
the application for execution must fail, and that since the first
respondent had committed acts by which the remedy of the sureties
against the second respondent had been impaired the sureties stood
discharged. The Commercial Subordinate Judge, First Class,
Delhi, rejected the objections raised by the sureties, and the order
of the Subordinate Judge was confirmed by Grover, J., in appeal
to the High Court of Judicature, Punjab. Appeals against the
order of Grover, J., under the letters patent of the High Court were
disinisscd in limine.
With special leave granted on August 12,
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SRI CHAND V. JAGD!SH PARSHAD (Shah, J,)
453:
1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court.
Basant Lal, one of the appellants died on October 18, 1962.
As he died before the record of the appeal was transmitted to this
Court, his heirs and legal representatives applied on July 24, 1963,
to the High Court for an order under 0. 16, r. 12 of the Supreme
Court Rules, 1950, certifying that they were proper parties to
be impleaded as legal representatives on the record of the appeal.
Tuey also applied for condonation of delay in moving the application. The High Court held that there was no adequate explanation justifying an order condoning the delay in making the application for bringing the heirs on record and accordingly the application for condonation of delay and the application for certifying
the heirs were dismissed. A petition submitted to this Court
for impleading the heirs and legal representatives in the appeal
was also dismissed by an order made in chamber on February 9,
1965. Thereafter a petition was filed on May 7, 1965 for special
leave to appeal against the order passed by the High Court refusing
to bring on record the legal representatives of Basant Lal. By
order dated January 20, 1966 we have rejected this petition.
Counsel for the first respondent contended that the appeal
had abated in its entirety because the heirs of Basant Lal had not
been brought on record, and the ground on which the judgment
of the High Court proceeded was common to all the sureties.
In our view this objection must be upheld. The appeal of Basant
Lal has abated since the legal representatives to his estate have
not been impleaded and the record of the appeal is defective.
That is not denied by the appellants. But it is urged that this
Court is competent to set aside an order of the High Court in
its entirety on the ground that it is not sustainable in law and in
any event to set aside the order in so far as it affects the claim of
appellants I & 3 and the third respondent. Support was sought
to be derived for the first contention from 0 ·41, r. 4 of the Code
of Civil Procedure and it was
urged that even if the decree be
assumed to have proceeded on a ground common to all the sureties,
it is open to any one or more of the sureties to appeal from the
order and the appellate Court may reverse or vary the decree in
favour of all the sureties. This plea stands refuted by the judgment of this Court in Remeshwar Prasad and Others v. Shambehari
Lal Jagannath and another.(') It was held by this Court in Rameshwar
Prasad' s case (') that an appellate Court has no power to proceed
with an appeal and to reverse· and vary the decree in favour of all
the plaintiffs or defendants under 0 · 41, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if
all the plaintiffs or the defendants appeal from the decree and any
of them dies and the appeal abates so far as he is concerned.
(I) [1964] 3 S.C.R. 549.
SUPREME OOURT REPORTS
(1966]3 S.C.R.
The two principal pleas raised before Grover, J., were that
A
the surety bond was not enforceable because it wss not registered
and that the decree-holders had committed an act by which the
.remedy of the sureties against the judgment-debtor had been
impaired and therefore the sureties stood discharged. The learned
.Judge negatived both the pleas. The decision of the Court obviously
proceeded on grounds which were common to all the sureties.
B
Basant Lal died after the order of the High Court under appeal.
He had preferred an appeal, but since the legal representatives
.to his estate have not been brought on record, his appeal has
abated. The order of the High Court holding that the sureties
are liable to satisfy the claim notwithstanding the objections raised
by Basant Lal has become final. In the appeal filed by the appellants I & 3 if this Court holds that the High Court was in error
in deciding that the surety bond was not enforceable because it
was not registered, or that the first respondent has done some
act which has discharged the sureties from liability under the bond,
there would unquestionably be two inconsistent orders-one
passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable.
This Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand
abated in its entirety. In the State of Punjab v. Nathu Ram (1)
this Court explained the tests applicable in considering whctile;
an appeal abates in its entirety when it has abated qua one of the
respondents. 1be headnote of the case reads :
"If the Court can deal with the matter in controversy
so far as regards the rights and interest of the appellant and
the respondents other than the deceased respondent, it has
to proceed with the appeal and decide it : otherwise it will
have to refuse to proceed further with the appeal and
therefore dismiss it. Ordinarily, the consideration which
will weigh with the court in deciding upon the question
whether the entire appeal had abated or not \viii be
whether the appeal between the appellants and the respondents other than the deceased respondent can be said
to be properly constituted or can be said to have all the
necessary parties for the decision of the controversy before
the court and the tests to determine this have been de5cribed thus : (a) when the success of the appeal may lead
to the court's coming to a decision which will be in conflict
with the decision between the appellant and the deceased
respondent and therefore which would lead to the court's
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(1) [19'2) 2 S.C.R. 636.
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Sill CHAND V. JAGDISH PARSHAD (Shah, 1.)
455
passing a decree which will be contradictory to the de~ree
which had become final with respect to the same subjectmatter between the appellant aud the deceased respondent; (b) when the appellant could not have brought
the action for the necessary relief against those respon·
dents alone who are still before the court and (c) when the
decree against the surviving respondents, if the appeal
succeeds, be ineffective that is to say it could not be successfully executed.
The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but
also as a necessary corollary that the appellate court
cannot in any way modify that decree directly or indirectly.
When the decree in favour of the respondents is
joint and indivisible, the appeal against the respondents,
other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has
abated."
The principle of this judgment was affirmed in Rameshwar Prasad' s
case (') and later in an unreported judgment in Kishan Singh and
others v. Nidhan Singh and others (2). It may be pointed out that
the three tests suggested by Raghubar Dayal, J., in Nathu Ram's
case (3) are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances, hold
that the appeal has abated in its entirety.
But counsel for the appellants has contended that the rules
laid down by this Court in Nathu Ram's case(') and other cases
has no application to this appeal, firstly, because this appeal arises
from an order in execution proceeding and rules as to abatement
by the express provision contained in 0·22, r. 12 Code of Civil
Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree
appealed against gives rise to a liability which is joint and several
it is open to one of the persons declared so liable to prosecute
an appeal in so far as he is concerned, notwithstanding abatement
of the appeal of a co-obligee. Order 22, r. 12 of the Code of Civil
Procedure provides that nothing in rules 3, 4 and 8 shall apply to
proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts.
In some cases the view has prevailed that appeals from orders in
execution proceedings are not subject to rules 3, 4 and 8 of 0 · 22,
Code of Civil Procedure and failure to implead heirs and legal
(1) (1964] 3 S.C.R. 549.
(2) C.A. 563 of 1963 decided on Dec. 14, 1964.
(3) (1962] 2 S.C.R. 636
MIO Sup. Cl/66-16
4 5&
SUJIU!MI COUl.T UPOl.TS
(1966) 3 S.l>.R.
r~l!resentatives of a deceased party in such an appeal will not be
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vmted by an order of abatement. In other cases it has been held
that an appeal against an order in execution is not "a proceedi~
in execution of a decree" and that such an appeal will abate if
the heirs are not brought on record within the period of limitation,
and that r. 12 has no application to appeals. Io this appeal it
is not necessary to resolve this conflict, for, appeals to this Court.
B
arc 1ovemed by the rules contained in 0.16 of the Supreme Court
Rules, 1950, and by r. 14 thereof it is provided :
"An application to bring on record the legal representative of a deceased appellant or respondent shall
be made within ninety days of the death of the said appellant or respondent :
Provided
that in computing
the time
taken
in obtaining a
the
said period
certificate from the
High Court shall be excluded."
The rule is explicit and makes no exemption in favour of any class
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of appeals. It is true that r. 14-A of 0 16 of the Supreme Court
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Rules, 1950, provides that :
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"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule
to the Indian Limitation Act, 1908 (IX of 1908), shall, so
far as may be applicable, apply to appeals and proceedings
under rule 12 and rule 13 in the High Court and in the
E.
Supreme Court."
nd thereby the provisions of 0. 22 relating to abatement of appeals
arc attracted. But there is no warrant for holding that any class
of appeals filed in this Court is exempt from the operation
of r. 14.
Liability of the sureties is under the law joint and several.
If a creditor seeks to enforce the surety bond against some only
of the joint sureties, the other sureties will not on that account
be discharged : nor will release by the creditor of one of them
discharge the other : vide ss. 137 & 138 of the Contract Act. But
the fact that the surety bond is enforceable against each surety
severally, and that it is open to the creditor to release one or more
of the joint sureties, does not alter the true character of an adjudi·
cation of the Court when proceedings are commenced to enforce
the covenants of the bond against all the sureties. We are not
concerned in this appeal with the privilege which a creditor may
exercise, but with the effect of an adjudication which the Court
has made in a proceeding to enforce the covenant of the bond.
The mere fact that the obligation arising under a covenant may
be enforced severally against all the covenantors does not make
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W CHAND V • .TAGI>ISH PAl.SHAI> (Shall, l.)
457
the liability of each covenantor distinct. It is true that in enforce··
ment of the claim of the decree-holder the properties belonging to
the sureties individually may be sold separately. But that is be·
cause the properties are separately owned and not because the
liability arises under distinct transactions.
It must therefore be held that the appeal has abated, because
the representatives of the second appellant-Basant Lal-havoc
not been brought on record within the time permitted by r. 14
of 0. 16 of the Supreme Court Rules, 1950, and the delay in
filing the petition to bring the representatives on record has not
been condoned.
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The appeal must therefore fail and is dismi11sed. Having•
regard to the circumstances, there will be no order as to costs in
this appeal.
·
Appeal dismissed .