# 301. MAHABIR PRASAD v. JAGE RAM & ORS

- **Citation:** [1971] 3 S.C.R. 301
- **Court:** Supreme Court of India
- **Decided:** 1971-01-06
- **Case number:** Civil Appeal No. 609 of 1967
- **Bench:** J. C. Shah, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/301-mahabir-prasad-v-jage-ram-ors-5185
- **Pages:** 5

## Headnote

Code of Civil Procedure (5 of 1908), 0. 41, r, 4-Scope of.
The appellant( his wife, and his mother held a joint decree. Against:
an order dismissing the applie.ation for execution of , the . decree,
the
appellant alone appealed joining the other two as party respondents.
Pend:ng appeal his wife died.
The High Court dismissed
the
appeal.
holding that because the heirs and legal representatives of the appellant
wife were not brought on rec<ird _within the period of limitation the appeal.
abated in its entirety. The High Court was of the view that ·the power
of the appellate court und~r O. 41. r. 4 Code of Civil Proceclure may be
exercised only in those cases where there is a decree which proceeds upon
a ground common to more persons than one and the appeal is filed by one
01 more of them but not all and other persons who are interested in the
result of the appeal are not made parties to the appeal.
Allowing the
appenl,
HELD: (i) Power of the appellate court under O. 41, r. 4, C .P .C. to·
very or modify the decree of a Subordinate Court arises when one onhe
persons· out of many against whom a decree or an olrder had been made.
on a ground which was common to him and others, has appealed, and
that power may be exercised when 1!ther persons whQ were parties to the·
proceeding before the Subordinate Court are eitl)er not impleaded as
parties .to the appeal or are impleaded as respondent.. The power is not
loM merely because the person who was jointly interested in the claim
has been made a party respondent and on his death his heirs have not
been brou11i•t on the record.
Ratan Lal Shah v. Firm La/mandar Chhadamma/a/ & A.nr., [1970) !'
S.C.R. 296, relied on.
Rameshwar Prasad 4c Ors. v. M /s. Shyam Behari/al lagannath & Ors.,
(19641 3 S.C.R. 549, distinauished.
(ii)
Where in a proceeding a party dies and one of the leaal repre·
scntatives is already on . the rec<ird in anotb'er capacity, it is only neces·
sury that he should be described by an appropriate application made in
that behalf that he is also on the record, ns an heir and legal represent&·
llve. Even if there are other heirs nnd legal representatives and no appli·
cation for impleding them is made within the ~od of llmitation pres•·
cribed by the Limitation Act the proceeding will not abate.
On that
ground also the order passed by the High Court cannot be sustained.
C1v1L APPELI,ATE Jua1so1cT10N: Civil Appeal No. 609 of
1967.
Appeal from the order dated March 3, 1965 of the Punjab
High Court, Circuit Bench at Delhi in Execution First Appeal'
No. 192-C of 1961.
S. T. Desai and A. D. Mathur, for the appellant.
v. D. Mahajan, for respondent No. 3.
302
SUPREME COURT REPORTS
(1971 ]3 S.C.R.
The Judgment of the Court was deliv~red by
Shah, C. J.
Jage Ram and two others-hereinafter collectively called the defendants-were less~es of
certain
proper~y.
belonging to Mahabir Prasad, his mother Gunwanti Devi and ~is
wife Saroj Devi {collectively referred .to hefe)lfter as 'the plamtiffs'.)
The plaintiffs comm:enced an act.ion in the court of the
Subordinate Judge, First Class, Delhi, for a desree for Rs. ·61,750,1being the amount of rent due by 'the defendants'
The Subordinate Judge, Delhi decreed the suit. 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 Subordinate Judge upheld the contention and dismissed the application for execution. Mahabir Prasa~
alone appealed against that order and impleaded Gunwanti Devi
and Saroj Devi- as party-respondents. Saroj Devi ·died in Novem_ber, 1962, and Mahabir Prasad applied that the name of Saroj
Devi be struck of from the array of respondents. The High Court
made an order granting the application "subject to all just exceptions".
The High Court dismissed the appeal holding that because the
heirs and legal representatives of Saroj Devi were not brought on
the record within the period of lintitation prescribed by th

## Text

A
B
c
D
E
F
G
H
301.
MAHABIR PRASAD
v.
JAGE RAM & ORS.
January 6, 1971
[J. C. SHAH, C.J. AND K. S. HEGDE, J.)
Code of Civil Procedure (5 of 1908), 0. 41, r, 4-Scope of.
The appellant( his wife, and his mother held a joint decree. Against:
an order dismissing the applie.ation for execution of , the . decree,
the
appellant alone appealed joining the other two as party respondents.
Pend:ng appeal his wife died.
The High Court dismissed
the
appeal.
holding that because the heirs and legal representatives of the appellant
wife were not brought on rec<ird _within the period of limitation the appeal.
abated in its entirety. The High Court was of the view that ·the power
of the appellate court und~r O. 41. r. 4 Code of Civil Proceclure may be
exercised only in those cases where there is a decree which proceeds upon
a ground common to more persons than one and the appeal is filed by one
01 more of them but not all and other persons who are interested in the
result of the appeal are not made parties to the appeal.
Allowing the
appenl,
HELD: (i) Power of the appellate court under O. 41, r. 4, C .P .C. to·
very or modify the decree of a Subordinate Court arises when one onhe
persons· out of many against whom a decree or an olrder had been made.
on a ground which was common to him and others, has appealed, and
that power may be exercised when 1!ther persons whQ were parties to the·
proceeding before the Subordinate Court are eitl)er not impleaded as
parties .to the appeal or are impleaded as respondent.. The power is not
loM merely because the person who was jointly interested in the claim
has been made a party respondent and on his death his heirs have not
been brou11i•t on the record.
Ratan Lal Shah v. Firm La/mandar Chhadamma/a/ & A.nr., [1970) !'
S.C.R. 296, relied on.
Rameshwar Prasad 4c Ors. v. M /s. Shyam Behari/al lagannath & Ors.,
(19641 3 S.C.R. 549, distinauished.
(ii)
Where in a proceeding a party dies and one of the leaal repre·
scntatives is already on . the rec<ird in anotb'er capacity, it is only neces·
sury that he should be described by an appropriate application made in
that behalf that he is also on the record, ns an heir and legal represent&·
llve. Even if there are other heirs nnd legal representatives and no appli·
cation for impleding them is made within the ~od of llmitation pres•·
cribed by the Limitation Act the proceeding will not abate.
On that
ground also the order passed by the High Court cannot be sustained.
C1v1L APPELI,ATE Jua1so1cT10N: Civil Appeal No. 609 of
1967.
Appeal from the order dated March 3, 1965 of the Punjab
High Court, Circuit Bench at Delhi in Execution First Appeal'
No. 192-C of 1961.
S. T. Desai and A. D. Mathur, for the appellant.
v. D. Mahajan, for respondent No. 3.
302
SUPREME COURT REPORTS
(1971 ]3 S.C.R.
The Judgment of the Court was deliv~red by
Shah, C. J.
Jage Ram and two others-hereinafter collectively called the defendants-were less~es of
certain
proper~y.
belonging to Mahabir Prasad, his mother Gunwanti Devi and ~is
wife Saroj Devi {collectively referred .to hefe)lfter as 'the plamtiffs'.)
The plaintiffs comm:enced an act.ion in the court of the
Subordinate Judge, First Class, Delhi, for a desree for Rs. ·61,750,1being the amount of rent due by 'the defendants'
The Subordinate Judge, Delhi decreed the suit. 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 Subordinate Judge upheld the contention and dismissed the application for execution. Mahabir Prasa~
alone appealed against that order and impleaded Gunwanti Devi
and Saroj Devi- as party-respondents. Saroj Devi ·died in Novem_ber, 1962, and Mahabir Prasad applied that the name of Saroj
Devi be struck of from the array of respondents. The High Court
made an order granting the application "subject to all just exceptions".
The High Court dismissed the appeal holding that because the
heirs and legal representatives of Saroj Devi were not brought on
the record within the period of lintitation prescribed by the Limitation Act the appeal abated in its entirety. Against that order,
this appeal is preferred with certificate granted by ihe High Court.
The decree in favour of Mahabir Prasad, Gunwanti Devi
and Saroj Devi was a joint decree.
Order 41
r. 4 C0de of
Civil Procedure· provides :
"Where there are more plaintiffs or more defendants
than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs, or to
all the defendants, imy one of the plaintiffs or of the
defendants may a,ppeal from the whole decree, .and
thereupon the Appellate Court may reverse or vary the
decree in favour of all the plaintiffs or defendants, as the
case may be".
Order ~I r. 4 Code of Civil Procedure invests the appellate
court with power to reverse or vary the decree -in favour of all
the plaintiffs or defendants even though they had not joined in
the ap.i:ea~ if the decree proceeds UJJO!l a ground common to all
the plamttffs or defendants.
In the view of the High Court the
power of the Appellate Court under 0. 41 r. 4 Code of Civil
Procedure may be exercised only in those cases where there is
a decree which proceeds upon a ground common to more persons
than one and the appeal is filed by one or more of them but not
all, and other persons who are interested in the result of the
A
B
c
D
E
F
G
A
B
c
D
E
F
G
H
MAHABIR PRASAD V. JAGE RAM (SIJah, C.J:)
303
appeal are not made parties to the appeal either as appellants
or respondents.
Where, such other persons are· made parties
to the appeal and one of them dies and his heirs are not brought
on the record within the period of limitation prescribed by the
Limitation Act, the appeal abates in its entirety. The High Court
observed:
"Appellant Mahabir Prasad has impleaded the re.
maining two decree-holders as respondents to the.appeal.
fhe execution application of allc the dectee-holders
has been dismissed on a common ground that the decree
which is sought to be executed has become null and
void. The appeal ~bates so far as decree-holder Sarojni
respondent is concerned because her legal representatives have not been brought on the record within time.
The order of the executing Court has become final so
far as this deceased respondent is concernd. It follows
that that order cannot be modified or varied. in favour
of appellant Mahabir Prasad and the second surviving
decree-holder respondent for obviously that may result
in inconsistent orders with regard to the same decree.
The order of the executing Court in so far as Sarojni
deceased respondent is concerned has become final and
if the same order is modified or interfered with so
far as the other two decree-holders, namely, appellant
Mahabir Prasad and respondent Gunwanti Devi are
concerned, the apparent result will be two inconsistent
orders with regard to the same decree which the decreeholders seeks to execute. · So the appeal of appellant
Mahabir Prasad also abates".
In support of their view the High Court relied upon the judgment
of tbis Court in Rameshwar Prasad and Others v. M / s Sh)' am
Behar.i/al Jagannath and Others.(') 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. In appeal
the District Judge set aside the decree, against one of the defendants. 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. No application for bringing his legal
representl\tives on the record was made within the
prescribed
time. 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
contradictory decrees. The surviving appellants claimed that the
(I) [1964] 'S.C.R. ;49.
304
SUPRE~E COURT REPORTS
[1971]3 s.c.R.
the appeal was maintainable on the ground that without
impleading. the . plaintiff who had dicii they could have
appealed against ,the entire decree in view of the provisions
pf 0. 41 r. 4 of the Code of Civil Procedure, and on that account
they were competent to continue the appeal, even after the death
of one or the joint decree-holders and abatement of the appeal
so far as he ~·l!s concerned, and the Court had power to hear the
appeal and to reverse or vary the whole decree. This Court held
that the provisions of 0. 41 r. 4 of the Code of Civil Procedure
were not ~pplicable, for the second appeal in the High Court was
filed by all 'the plaintiffs jointly. and the surviving appellants
could not be said to have filed the appeal as representing the
deceased appellant.
The Coutt further held that the appellate
court had no power to proceed to hear the appeal and to reverse
or vary ihe decree in favour of all the plaintiffs or defendants·
under 0. 41 r. 4 of the Code of Civil Procedure, when the
decree proceeded OI) a ground common to all the plaintiffs, •or
defendantsi if all the plaintiffs or the defendants appealed
from the i;tecree and any of them died, and the appeal abated in so far as he was concerned under 0. 22 r.
3, ?f the
Code of Civil Procedure. Rameshwar Prasad's case(') is
obviously distinguishable from the present case.
In Rameshwar
Prasad' s case -all the plaintiffs whose suit had been dismissed had
filed an appeal and thereafter one o1 them died and ·· his heirs
were not brought on the record. In the. present case there is an
order against the decree-holders but all the decree-holders did not
appeal : only one of them .appealed and other two were joined as
party respondents.
In a later judgment of this Courfin Ratan Lal Shah v. Firm Lalmandas Chhadammalal & Anr.( 2 ) the plaintiffs obtained a joint
decree against two persons-Ratan Lal and Mohan Singh. Against
the decree Ratan Lal alone l)ppealed to the High Court of Allah·
abad. Mohan Singh was impleaded as a party-respondent to the
appeal. Notice of appeal sent to Mohan Singh was returned unserved, and no steps were taken to serve him with notice of the
appeal. 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 an'd the decree against Mohan Singh had
become final.
The appeUant could not, on that account claim
to be heard in his appeal : if he was heard and his claim was
upheld. The High Court observed that there would be two conflicting decisions between the same parties and in the same suit
based on the same cause of action. This Court set aside the
judgment of the High Court observing that even though Mohan
(I) [1964] 3 S.C.R. 549.
(2) [1970] 1 S.C.R. 296.
A
B
c
D
E
F
G
H
' I
B
c
D
E
F
G
H
MAHABIR PRASAD v. JAGE RAM (Shah, C.J.)
305
Singh was not served with notice of appeal, the appeal filed by
Ratan Lal was maintain!!ble, in view of -the provisions of O. 41
r. 4 Code of Civil Procedure. In Ratan Lal Shah's case(1) ·this
Court allowed the appeal to be prosecuted, even though one of
the joint decree-holders impleaded as
a_party-respondent had
not been served with the notice of appeal. In the present case
one of the respondents had died and his heirs have not been
brought on the record. No distinction in principle may be made
between Ratan Lal Shah's case(') and the present case. Competence of the appellate court to pass a decree appropriate to the
nature of the dispute in an appeal filed by one of severnl persons
against whom a decree is made o,n a ground which is common to
him and other~ is not lost merely because of the persons who was
jointly interested in the claim has been made a. party-responde.nt
and on his death his heirs have not been brought Qll the record.
Power of the appellate court under Order 41 r. !I to vary or
modify the decree of a Subordinate Court arises when one of
the persons out of many against whom a decree or an order had
been made on a ground which was common to him and others
has appealed. That power may be exercised when other persons
who were parties to the proceeding before the .subordinate court and
against whom a decree proceeded on a ground which was common
to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The
view .taken by the High Coun cannot .therefore be sustained.
Even on the alternative ground that Mahabir Prasad being one
of the heirs of Saroj Devi there can be no abatement merely
because no formal application for sl)owing Mahabir Prasad as
an heir and legal representative of Saroj Devi was made. Where
in a proceeding a party dies and one of the legal representatives
is already on the record in another capacity, it is only necessary
that he should be des9ribed by an appropriate application made
in that behalf that he is also on the record, as an heir and legal
representative. Even if tl)ere are oilier heirs and legal represen·
tatives and no application for impleading them is made within
the period of limitation prescribed by the Limitation Act the
proceeding will not abate. On that ground also the order passed
by the High Court cannot be sustained.
The appeal is allowed and the proceeding remanded to the
High Court to be dealt with and disposed of according to law.
Defendants will pay the costs of this appeal.
Co~ts in the High
Court will be the costs in the appeal.
K.B.N.
Appeal allowed.
fl) [19701 I S.C.R. 296.
6-L807 Sup CI/71