# JAYARAMA REDDY & ANR v. REVENUE DIVISIONAL OFFICER & LAND ACQUISITION OFFICER,KURNOOL - **Citation:** [1979] 3 S.C.R. 599 - **Court:** Supreme Court of India - **Decided:** 1979-03-23 - **Bench:** P. N. Shinghal, D. A. Desai - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jayarama-reddy-anr-v-revenue-divisional-officer-land-acquisition-officer-kurnool-7654 - **Pages:** 26 ## Headnote Code of Civil Procedure; 1908-0rder XXII r. 4-Scopc of-Cross appeals -Legal representatives of deceased appellant brought on record-Appellan~ in cross·appeal fatled to bring them on record of cross appeal-CroJs appeal-If abates-,Vo objection raised before the High Court-.ff could be raised in further appeal. Order XXII Rule 4(1) CPC provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or d.efendants alone, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made A B c a party and shall proceed with th~ suit. Sub-rule (3) of the Rule provides D that \vhere, within the time limited by law, no application is made under sub· rule (1) the suit shall abate as against the deceased defendant. The Ia-nd in dispute, which belonged to three persons, was acquired by the State Government for a public purpose and the market value was fixed at Rs. 2/· per square yard, On appeal by the claimants, it was raised to Rs. 12/- per square yard. Against the order of Subordinate Judge, both the State and the claimants filed appeals before the High Court. \Vhile the aippeals were pending before the High Court, one of the claimant~ died. Tbe legal representatives of the deceased cla·imant were brought on record in the claimant's appeal, but the Government took no steps to bring the legal representatives of the deceased claimant on record in the appeal filed by it. Dismissing the claimant's appeal and allowing the Government appeal the High Court reduced the price of the acquired land to Rs. 4 j- per square yard. In appeal befor'e this Court the claimants contended that since the legal representatives of the deceased claimant were not brought on record within the period of limitation, the Government appeal abated and stood disrnissed, Dismissing the appeal, HELD: (per Shinghal, J.) I. It is not correct to say that the Gi:>vernmeot · appeal stood dismissed against the surviving respondents because th'e Govern· ment failed to bring the legal representatives of the deceased claimant on record within the specified time limit. The question whether the right to sue survived agaM1st the surviving respondents alone, was a matter for the appellate court to examine and decide after hearing the parties \vith regard to the question of jointness or otherwise of the de:ree and the further question whether there was any possibility of two contradic:ory decrees. [605 F-G] E F G H A B c D E F G H 600 SUPREME COURT REPORTS [1979] 3 s.c.R. 2. There is no justification for the arguro'ent that the High Court's decree wa.s a nullity because it was passed against a dead per~nn. A decree against a dead person is a nullity because it cannot be allowed to operate against his legal representatives when they were never b:-ought on the record to defend the case. It is held a nullity because it cannot be executed against his legal representatives who had not ha.d the full opportuuity o.f being heard in respect of it. If the respondent to an appeal dies and the appellate1 court loses sight of that development or ignores it, it will still be permissible for the court hearing the appeal to bring his legal rcpresentati->es on the r€X:ord on an r'•)plication to that efi'iect and to consider any application for condonation of delay. It is permi:sisible for the appellate court to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. [606 B-D] 3. \Vhile the law treats such decree as a nullity qua the legal representative of th~ deceased defendant or respond'ent, there is nothing to prevent him from decidil:'!g that he wou!d not treat the decree as a nullity but would abide by it as it stood or as it rn&y be modified on appeal. If a legal repr'csentative adopts that alternative, it cannot be sa'.d that his option to b-~ governed by the decree is against the lvernmeot · appeal stood dismissed against the surviving respondents because th'e Govern· ment failed to bring the legal representatives of the deceased claimant on record within the specified time limit. The question whether the right to sue survived agaM1st the surviving respondents alone, was a matter for the appellate court to examine and decide after hearing the parties \vith regard to the question of jointness or otherwise of the de:ree and the further question whether there was any possibility of two contradic:ory decrees. [605 F-G] E F G H A B c D E F G H 600 SUPREME COURT REPORTS [1979] 3 s.c.R. 2. There is no justification for the arguro'ent that the High Court's decree wa.s a nullity because it was passed against a dead per~nn. A decree against a dead person is a nullity because it cannot be allowed to operate against his legal representatives when they were never b:-ought on the record to defend the case. It is held a nullity because it cannot be executed against his legal representatives who had not ha.d the full opportuuity o.f being heard in respect of it. If the respondent to an appeal dies and the appellate1 court loses sight of that development or ignores it, it will still be permissible for the court hearing the appeal to bring his legal rcpresentati->es on the r€X:ord on an r'•)plication to that efi'iect and to consider any application for condonation of delay. It is permi:sisible for the appellate court to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. [606 B-D] 3. \Vhile the law treats such decree as a nullity qua the legal representative of th~ deceased defendant or respond'ent, there is nothing to prevent him from decidil:'!g that he wou!d not treat the decree as a nullity but would abide by it as it stood or as it rn&y be modified on appeal. If a legal repr'csentative adopts that alternative, it cannot be sa'.d that his option to b-~ governed by the decree is against the l \ , .. I • •• ( . ' JAYARAMA REDDY V. REVENUE OFFICER 601 -case at 21 crucial stage, cannot be allowed to be taken up later at the will of the ;party which had abandoned ihe point _or as a la&t resort, or as an after thought. Gaekwar Baroda State Railway v. Hafiz Habib·ul·Haq & Ors., 65 InJian Appeals 182: Thakore Saheb Khanji Kas.hari Khanji v. Gulam Rosul Chandbhai, AIR 1955 Bon1. 449; Punjflb State v. Sardar Attna Singh, AIR 1963 Pub. 113, State of Rajast/Uln & Ors. v. Raghuraj Singh, AIR 1968 Raj. 14; held inapplicable. 6. The High Court had rightly taken into consideration all factors necessary for coming to the right conclusion for fixing the rate of compensaition payable to 1be cl.:U1nants namely that a few months before the date of at:l[uisition the ·claimants them5elves- purchased the land at Rs. 2/- per square yard, that they did not make any improvements after its pun;h2,5e and that the previous owners had not sold the land for any compelling reason. [611 B-D] A B c Desai, J. (concurring) 1. The basic principle underlying O. XXII rr. 3 and '4 CPC is ::1 facet of natural justice. It is a fundam;!ntal rule of natural justice thait a man has a right to be heard where a decision affecting him or his interesit is to be recorded. As a corollary to the rule of audi altrem partem it is provided in the Code of Civil Procedure that where a party to a proceeding dies pending the proceeding and the cause of action survives, the l'cgal represen~atives of the D deceased party should be brought on record, which n1eans, that such legal represent.a.tive must be afforded an opportunity of b'eing heard before any liability is fastened on them. Although the legal representatives LJf a deceased plaintiff or defendant must b'e substituted on the pain of the action abating, \Vith utmost diligence, from a multitude someone n1ay escap.: notice and the consequent hardship in abatement of action led this Court to ass~rt the principle that where some legal representatives were brought on record permitting an E inference that the estate was adequately represented, the action would not abate though it 'vould be the duty of the other side to bring on record even at a later ,date those legal representatives who were overlooked or missed. [614 E-H] 2. The principle deducible from decisions of this Court is that if the deceased had, as a party, a right to put forth his case. those likely to be affected by the decision, o•J death of the deceased, had the same opportunity to put forth their case and even if from a large number having identical interest some are not brought on record those \Vho arc brought on record would adequately take care of their inte:est and the cause, in the ribscnce of some such, would not a-bate . 1615 F-GJ DtIYa Ram & Ors. v. Silyam Sundari, [1965] 1 SCR 231; N. K. Mohan1mad Sulain1an v. N. C. Moha1nmad Ismail & Ors., [1966] 1 SCR 937; HarN1ar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors., [1975] 2 SCR 932; referred to. 3. Yet a1J.other principle is th<>·~ if the legal representatives of the deceased party were before the court in the sam'e action even if in another capacity, failure to bring them on record in a specific legal position would not result in abateF G ment of the action. [615 HJ n Mahabir Prasad v. }age Ram & Drs. [1971] 3· SCR 301; referred to. A B c D E F G 602 SUPREME COURT REPORTS [1979] 3 s.c.R. 4. Where a. d'ecree partly satisfies each of the two parties in a suit, both· parties may prefer an appeal cha11enging only that part of the decree by \Vhich each party is dissatisfied. But where one of the two parties appeals and a ootic~ of app(:al is served on the other, the respondents receiving the notice may pr'l:!fer cros&-objections under O. XLI, r. 22 CPC. In such a case, though the respondent may not have appeal'ed from any part of the decree, he may take crossobjections to the decree which he could have taken by way of appeal. The parameters of cross-objections are limited to the contention which could prop'erly be taken in an appeal against a decree or part of a decree. [617 B-D] 5. When legal repres'entatives of a deceased appellant are substituted and those very legal representatives as legal representatives of the same person occupying the position of respondent in cross-appeal are not substituted, its out· come would be that they were on record in the connected proceeding before the same court hearing both the matters, in one capacity though they Yiere not described as such in their other capacity, namely, as legal representatives of the deceased respond'ent. To ignore this obvious position would be giving undue importance to form rather than substance. The anxiety of the court should be whether those likely to be affected by the d'ecision in the proceeding were before the court having full opportunity to canvass their case. Once that is satisfied' it can be said that the provisions contained in rr. 3 and 4 of 0. XXII are satisfied in a given case. To taik'e another view would be to give an opportunity to the legal representatives· of a deceased party in an appeal having had the fullest opportunity to canvass their case· through the advocate of t'ieir choice appearing in cross-2•pp'eals for them and having canvassed their case and Jost, to turn round and contend that they were not before the court as legal representatives of the same person in his other ..:apacity, namely, respondent in the crosti-app'eal. In other words, those legal representatives were before, the court all throughout the h~aring of the appeal as parties to the a.ppeal and canvassed their case and were heard through their advocates and they had the full opportunity to put forth whatever contentions were open to them in the appeals and to contest the con· tentions advanced aga.inst th'em by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased respondent in the cross-appeal that appeal has abated, it >,vould be wholly u~just. It is very difficult to distinguis-h on principle the approach of the- court in appeals and cross-objections and in cross-appeals in this behalf. The cases which have ta.ken the vi'ew that in cross-appeals the position is different from the one in appeal and cros,g-objections do not proceed on any discernible legal principle. Nor can they be explained by any de1nonstrable legal principle but in fact they run counter to the established legal principle. [623 G-H; 624· A-CJ Brtj 111der Singh v. Lala Kanshi Ram & Ors .. AIR 1917 PC 156; Rangubai Korn Shanker Jagtap v. Sunderabai Bhra'i/ar Sakharam /edhe & Ors., [1965] 3 SCR 211 at 216·217; app!i'ed. Sankaranaraina Sara[aya v. Laxmi Hengsu & Ors., AIR 1931 Mad. 277; State of Raiasthan & Ors. v. Raghurai Singh, AIR 1968 Raj. 14; not approved. H In the instant case the legal representatives of the deceased claimant were brought on the record of the "Claimant's app'eal. Both the appeals were hea.rd together. Their counsel argued their case in both appeals. Therefore, they were • > JAYARAMA REDDY v. REVENUE OFFICER (Shinghal, ],} 603 ' l:>efore the court all through. Th'e fact that they had not been described as legal A repres~ntatives of the deeeased in the Government appeal could not make any .difference and their appeal has not abated. _On the question of compensatio•.:i no case had been made out for interfering with the view of the High Court. ')VIL APPELLATE JURISDICTION : Civil Appeal No. 2314 of 1969. 1 ' From the Judgment and Decree dated 4-2-1969 of the Andhra B -..,.(--Pradesh High Court in Appeal No. 180/64. A. K. Sen and A. Subba Rao for the Appellant. •, c • T. V. S. N. Chari for the Respondent. The following Judgments were delivered : SHINGHAL, J.-This appeal is by a certificate of the High Court of Andhra Pradesh on the valuation of the subject matter and is directed against its judgment dated February 4, 1969. D The State Government acquired 2 acres and 79 cents of the land of the appellants in Kurnool town, for locating a bus depot of the Andhra Pradesh State Transport Corporation. It was arable land within the municipal liniits of the town, with two trees and an old compound wall. Its possession was taken by the State Government on May 25, 1962. The market value of the land 'was fixed at Rs. 27,042.53 at the rate of Rs. 2/- per square yard. The compound wall and the trees were valued at Rs. 930/- and after allowing a solatium of 15 per cent and interest at 4 per cent per annum, the total compensation was E · "worked out to Rs. 33,069.12. N. Jayarama Reddy, Y. Prabhakar r" ( ,,.. Reddy and C. Manikya Reddy, who were the three owners of the land, accepted that compensation under protest and applied for a reference under section 18 of the Land Acquisition Act. After recording evidence and inspecting the site, the Subordinate Judge held that the claimants were entitled to payment at the rate of Rs. 12/- per square yard for the value of land, a solatium of 15 per cent and interest at 4 per cent. Both parties felt aggrieved against that order dated Jnly 30, 1963. While appeal No. AS 180 of 1964, hereinafter referred to as the government appeal, was filed by the Revenue Divisional Officer and the Land Acquisition Officer, Knrnool, appeal No. AS 296 of 1964, hereinafter referred to as the claimants' appeal, was filed by the claimants. There were thus cross-appeals in the High Court against a common order of the Subordinate Jndge. The memorandum of the government appeal was filed on December 7, 1963. I do not F G H A B c D E F G H 604 SUPREME COURT REPORTS [1979] 3 S.C.R. have the date of the claimants' appeal on the record, but it is not disputed that it was filed before April 3, 1964. While the two appeals were pending in the High Court, Y. Prabhakar Reddy, one of the three claimants of the compensation for the acquired land, died on April 3, 1964. An application was. made in the claimants' appeal to bring his legal representatives on the record, and the High Conrt passed an order on July 14, 1964 (in C.M.P. No. 7284 of 1964) bringing appellants 4 to 9 on record as the legal representatives of Y. Prahhakar Reddy. It is admitted before me that was done before the abatement of that appeal. It seems that no application was made in the . government appeal to bring the legal representatives of the deceased respondent Y. Prabhakar Reddy on the record of that appeal. Both the appeals were, however, taken up for hearing together and were disposed of by a common judgment of the High Court dated February 4, 1969. The High Court dismissed the claimants' appeal, but allowed the government appeal and reduced the price of the acquired land from Rs. 12/- to Rs. 4/- per square yard "with the usual solatium and interest at 4 per cent as allowed by the lower court." While the government felt satisfied with that judgment, the claimants applied for a certificate which was granted on the ground that the value of the subject matter of the suit in the court of first instance was upwards of Rs. 20,000/- and the value of the subject matter in dispute on appeal to this Court was also upwards of that amount and the decree appealed from did not affirm the dedsion of the lower court. On the strength of that certificate the appellants have come up to this Court in appeal. It has been argued by Mr. Sen on behalf of the appellants that as Y. Prabhakar Reddy, respondent No. 2 in the government appeal died on April 3, 1964, and his legal representatives were not brought on the record within the period of 90 days provided by law, that appeal abated thereafter and stood dismissed automatically and could not be resurrected and beard by the High Court as a cross-appeal to the claimants' appeal. The learned counsel bas placed reliance on the decisions of this Court in The State of Punjab v. Nathu Ram,(') ~ameshwar Prasad and others v. Mis Shyam Beharilal Jagannath and others,(2) Ramagyd; Prasad Gupta and others v. Murli Prasad(') and Harihar Prasad Singh and others v. Balmiki Prasad Singh ana others.(') to support his argument. In particular, be bas placed (1) [1962] 2 S.C.R. 636 (2) [1964] 3 S.C.R. 549 (3) [1973] 1 S.C.R. 63 (4) [1975] 2 S.C.R. 932 • ... '· ( .. ( -· JAYARAMA REDDY v. REVENUE OFFICER (Shinghal, /.) 605 reliance on Nathu Ram's case(') to fortify his argument that the specification of the shares or of the interest of the deceased Y. Prabhakar Reddy did not affect the nature of the decree and the capacity of the joint decree holders to execute the entire decree or to resist the attempt of the other party to· interfere w;tb the joint right decreed in their favour. In particular, he bas relied on that portion of that decision where it has been stated that as the subject matter for which the compensation is to be calculated in such cases is one and the same, there cannot be different assessments of the amounts of compensation for the same parcel of land. So, as the appeal before the High Court was directed against the joint decree and the appellate court could not take a decision on the basis of the separate sl!ares of th~ claimants, it has been argued that the whole of the government ap!Jeal should have been dismi~sed because of its abatemem against the deceased respondent. Now what Order XXII r. 4 (I) C.P.C. provides is that where one of two or more defendan!s dies and the right to sue does not survive against the surviving defendant or defendants alone, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Sub-rule (3) prov;des further that where w;thin the time limited by law no application is made under sub-rule (1), "the suit shall abate as against the deceased defendant." So as Y. Prabhakar Reddy, respondent No. 2 in the government appeal, died on April 3, 1964, and an application was not made to bring his legal representatives on the record within the specified time limit, the appeal automatically abated as against the deceased respondent, and it is not correct to say that the appeal automatically stood ·dismissed against the surviving respondents because of that default. The question whether the "right to sue" survived against the surviving respondents alone, was a matter for the appellate court to examine and decide after hearing the parties, with due regard to the question of jointness or otherwise of the decree and the further question whether there was any possibility of two contradictory decrees etc. As that was not done by the High Court where the government appeal was pending, there is no justification for the argument that the appeal automatically stood dismissed after the expiry of the period of 90 days from the death of respondent Y. Prabhakar Reddy on April 3, 1964 because of the abatement of the appeal against him. But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the (1) [1962] 2 S.C.R. 636. A B c D E F G H A B c D E F G H ~06 SUPREME COURT REPORTS [1979] 3 s.c.R. deceased respondent, there is no justification for Mr. Sen's further argument that the High Court's decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative can not be condemned unheard. So if a respondent to an appeal dies, and the appeal abates because of the failure to bring his legal representative on the record within the time limited by law, and the appellate court loses sight of that development or ignores it, it will still be permissible for· the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for condonation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. The Jaw has therefore provided, and accepted, modes for reopening and hearing the appeal in such cases. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the Jaw treat~ such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that bis option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the leg'1_l represeI!!aJive of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at tho. appropriate time, namely, during the course of the hearing of any appeal may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so, either because of his faith in the strength of his case on the meriti, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of 'f \ ·- . ' • ' r I .. ' >- it~· l '(- ~ ,T ./ '-. ( ' ' JAYARAMA REDDY v. REVENUE OFF!Cllil (Shinghal, J.) 607 cross-appeals, he may have the impression that bringing the legal representative of the dece_ased respondent on record in an appeal by a coappellant will enure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no· justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which otfe of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone me!ely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by any one. But, as is equally obvious, it will not be fair to draw an infer~nce as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully. The following facts have been well established in this respect in the present case. It will be recalled that the Subordinate Judge made his order in the reference under section 18 of the Land Acquisition Act on July 30, 1963, and the memorandum of the government appeal was filed in the High Court on December 7, 1963. The claimants filed their crossappeal No. AS 296 of 1964 soon after and, at any rate, before April 3, 1964. It will also be re-called that Y. Prabhakar Redd·y died on April 3, 1964. While he was respondent No. 2 in the government appeal, he wa_f! a co-appellant in the claimanis' appeal. As has been stated, the claimants brought Y. Prabhakar Reddy's legal representatives on the record in their appeal under an order of the High Court dated July 14, 1964, and they were arrayed as appellants Nos. 4 to 9. It is admitted that that appeal therefore never abated and the array of the parties was full and complete. As has been pointed out, the legal representatives of Y. Prabhakar Reddy were not brought on record in the government appeal. It cannot be denied, however, that they knew of Y. Prabhakar Reddy's death on April 3, 1964, for he was their ancestor. They also knew that they had been brought on record as his .legal representatives in the claimants' appeal because of the High Court's specific order to that effect dated July 14, 1964 in C.M.P. No. 7282 of 1964 where they were represented by counsel. They thus knew that Y. Prabhakar Reddy's legal representatives were not brought on record in the government appeal, and that it stood abated against them because of the expiry of the time limited by law 19-253SCI/79 A B c D E F G H A B 608 SU!>REME COURT REPORTS [1979] 3 s.c.R. in that respect. Even so, they did not make an application to the High Court for the dismi~al of the appeal on the ground that it could not survive against the surviving respondents because of that. basic defect, in the facts and circumstances of that case. That in fact continued to be the position for a long period of some five years. It is not disputed that the appeals came up for hearing in the High Court on or about February 4, 1969, but, even then, no objection was taken to the hearing of the government appeal in spite of the fatal defect in its constitution. On the other hail'tl; when the two appeals were taken up for hearing, the High Court heard, without any objection, ·not only the counsel for the appellants in the government appeal, but also C. Padmanabha Reddy, who was counsel for the respondents in that appeal and for the reconstituted array of appellants in the claimants' appeal. The legal representatives of Y. Prabhakar Reddy and their counsel were thus aware of the fact that the government appeal had abated against respondent Y. Prabhakar Reddy, and it will not be unfair to assume that they, or, at any rate, their counsel knew that it was open for them to contend that the appeal was liable to dismissal for that reason. Two courses of action were therefore open to them : (i) to move the High Court for the dismissal of the government appeal, or (ii) to allow that appeal to be heard and decided on the merits and to abide by any decree which the High Court might pass in the two E appeals. The legal representatives and their counsel did not choose to adopt the first course of action, and it will be fair and reasonable to hold that they wilfully chose the second course of action. That was why their counsel C. Padmanabha Reddy, who was counsel for all the respondents in the government appeal, and for all the appellants in the claimants' appeal, argued both the appeals on the merits. The High Court heard and decided the cross-appeals by its impugned judgment dated February 4, 1969, and it will be a proper conclusion for me to reach that the legal representatives of Y. Prabhakar Reddy wilfully abandoned any plea that might have been available to them on the basis of the abatement of the government appeal against the deceased respondent. G H It was only after the judgment of the High Court went aaginst them, that the legal representatives of Y. Prabhaka_r Reddy decided to take np the question of abatement, for the first time, in the petition which they and the other claimants' filed under section 104-110 and order 45 rules 2 and 3 C.P.C. It is significant that they did not even then ask the High Court to review its judgment and grant them relief on the ground that Y. Prabhakar Reddy had died and the decree against him was a nullity in so far as they were concerned. The High Court was ~ I .. _. ti t -,)~ I • / ' ' • ! \, ~ I JAYARAMA REDDY v. REVENUE OFFICER (Shinghal, J.) 609 simply asked to allow the application for the certification of the appeal A on the ground that the value of the subject matter was upwards of Rs. 20,000/- and it made an order to that effect. In all these facts and circumstances, I have no doubt that any plea that may have been available to the legal representatives of the deceased Y. Prabhakar Reddy in the government appeal because of its abatement, was wilfully abandoned by them. Any other view of the matter will be unfair to the present respondents, because if any such objection had been taken in the High Court, they would have made an application for the setting as;de of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an after thought. In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other party . Mr. Sen has however made a reference to Gaekwar Baroda State Railwriy v. Hafiz Habib-ul-haq and others( 1) and Thakore Saheb Khanji Kashari Khanji v. Gu lam Rasul Chandbhai (2 ) for the purpose of showing that the government appeal was not at all maintainable in· the High Court because of its abatement against respondent Y. Prabhakar Reddy as that was a matter relating to the jurisdiction of the High Court which could not have been abandoned. The provisions of section 86 C.P.C. came up for consideration in both those cases and it was held that as the section was based upon public policy or purpose, it was not open to a ruling chief to waive its provisions. Those were therefore different observations which have no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public policy. Mr. Sen's reference to Maharana Shri Davlatsinghji Thakore Saheb of l.imdi v. Khachar Hamir Mon,(') Town 1Wu11icipal Council, Athani· (!) 65 Indian Appeals 182 (2) AJ.R. 1955 Bombay 449 (3) I.L.R. 34 Bombay 171. B c D E F G H A • c D G • 610 SUPRl!Mll COUl.T REPORTS [1979] 3 s.c.R. T. Presiding Officer, Labour Court, Hubli and others,(') Simpson and flll(}ther v. Crowle and 0th.rs(•) Chief Justice of Andhra Pradesh and tmother v. L. V. A. Dikshitula and others(3 ) and P. Dasa Muni ReaiJy Y. P. Appa Rao(') is equally futile because they were cases of inherent lad of jurisdiction in the co.i:t cottcerncd or raised the question of the bar of limitation . Mr. Sen has placed reliance OD. Punjab State v. Sardar A.tm« Singh(") and State of Rajasthan and others v. Raghuraj Singh(') to show that where an application is not mad• to bring the legal repreientative of the deceased respondent on the record of a cross-appeal, that appeal will abate, and it wiU not be permissible for the appellant to claim the benefit of the fact that the legal repr-ntative of the deceased respondent had been brought on the record in the crcJ£s-appeal filed by him. I have gone tlrrough the cases, but they are clearly distinguishable. The respondent in both cases died durin:; the pendency of the first appeal, and an objection as to abatement was takea during the course of the hearing, so that there was no questiGn of abandoning the objection in either of !hese cases and it was permissible to apply to the court for th~ usual consequences which follow for non