# RANGUBAI KOM SHANKAR JAGTAP v. SUNDERABAI BHRATAR SAKHARAM JEDHE AND ORS

- **Citation:** [1965] 3 S.C.R. 211
- **Court:** Supreme Court of India
- **Decided:** 1965-03-01
- **Case number:** Civil Miscellaneous PetiA tion Nos. 2402 of 1964
- **Bench:** K. Subba Rao, J. C. Shah, R S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rangubai-kom-shankar-jagtap-v-sunderabai-bhratar-sakharam-jedhe-and-ors-3398
- **Pages:** 7

## Headnote

Legal representatives of deceased respondent-Brought on record
in final decree proceedings-If enures for purposes of appeal previously filed-Appeal-When continuation of suit.
The respondents filed a suit against the petitioner in 1954 for the
possession of certain property and for mesne profits and obtained a
decree in their favour. The petitioner's appeal to the High Court was
dismissed in April 1959 and a· petition for special leave to appeal ta
this Court was granted in June, 1959. Thereafter, the 7th respond;,nt
died in November 1959. The petitioner filed the present applications
in October 1964 for bringing on record the legal representatives of
the 7th respondent and for condonation of delay on various grounds.
It was also contended on behalf of the petitioner that in view of the
fact that after the preliminary .decree for mesne profits had been
passed, the respondents/plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final
decree proceedings within the time prescribed, and as the legal
representatives were brought on record at one stage of the suit,
on the basis of the rule laid down by the Privy Council in Bri;
Inder Singh v. Kanshi Ram, 44 I.A. 218, no question of abatement
would arise in respect of the appeal; that the final decree proceed·
ings are a stage in the suit and the appeal is another stage in the
suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enuTe for all stages of the suit.
HELD : (i) On the facts of the case there were no sulfficient
grounds for condoning the delay in bringing the legal representatives
of the 7th respondent on the record.
(ii) The order bringing the legal representatives of the respon•
dent on record in the final decree proceedings cannot enure for the!
benefit of the appeal filed against the preliminary decree. The appeaD
therefore abated so far as the 7th respondent was concerned. [217D)I
·G
An order bringing the legal representatives of a deceased party:
on the record passed at the stage of an interlocutory application in
a suit, or passed while an appeal is pending where the suit is subsequently remanded· to the trial court, or if passed while an appea]
is pending against an interlocutory order in a suit, would enure for
the subsequent stages of the ·suit; in all these cases the order is
made at one stage of the suit, be it the suit or in an appeal agains~
H
the interlocut?ry o~der or final .order in the suit, for heri: the appeal
1s only a contmua!Jon of the smt. But the same legal position cannot
be invoked where an order is made in a suit subsequent to the filing
of an appeal at an earlier stage. Such an order cannot be projected
backwards into the appeal that has already been filed so as to become
an order in that appeal. [216F-217D]
Brij Inder Singh v. Kanshi Ram, 44 I.A. 218 distinguished.
Shankarnaraina Saralaua v. Laxmi Hengsu, A.LR. 1931 Mad. 277.
referred to.
LIB(N)3S.CJ.-i
212
SUPREME COURT REPORTS
[1965] 3 S.C.R.
C1v1L
APPELLATE
JURISDICTION : Civil Miscellaneous PetiA
tion Nos. 2402 of 1964.
Applications for substitution for condonation of delay.
AND
Civil Appeal No. 430 of 1963.
Appeal by special leave from the judgment and decree dated
B
April 8, 1959, of the Bombay High Court in First Appeal No. 6~6
of 1954.
S. G. Patwardhan and A. G. Ratnaparkhi, for' the appel!ant.
Naunit Lal, fer the respondents.
ORDER
Sobba Rao, J. These are two applicatiom, one for the
substitution of the legal representatives of respondent No. 7 in
Civil Appeal No. 430 of 1963 on the file of this Court and the other
for the condonation of delay in filing the first application.
The first question is whether there is sufficient ground fon
excusing the delay in filing the application for bringing the legal
representatives of the 7th respondent on record. The facts arc as
follows : Sakharam Maruti Jedhe and others filed Special Suit
No. IO of 1964 in the Court of the Civil Judge, Senior Div

## Text

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RANGUBAI KOM SHANKAR JAGTAP
v.
SUNDERABAI BHRATAR SAKHARAM JEDHE AND ORS.
March 1, 1965
[K. SUBBA RAO, J. C. SHAH AND R
S. BACHAWAT, JJ.)
Legal representatives of deceased respondent-Brought on record
in final decree proceedings-If enures for purposes of appeal previously filed-Appeal-When continuation of suit.
The respondents filed a suit against the petitioner in 1954 for the
possession of certain property and for mesne profits and obtained a
decree in their favour. The petitioner's appeal to the High Court was
dismissed in April 1959 and a· petition for special leave to appeal ta
this Court was granted in June, 1959. Thereafter, the 7th respond;,nt
died in November 1959. The petitioner filed the present applications
in October 1964 for bringing on record the legal representatives of
the 7th respondent and for condonation of delay on various grounds.
It was also contended on behalf of the petitioner that in view of the
fact that after the preliminary .decree for mesne profits had been
passed, the respondents/plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final
decree proceedings within the time prescribed, and as the legal
representatives were brought on record at one stage of the suit,
on the basis of the rule laid down by the Privy Council in Bri;
Inder Singh v. Kanshi Ram, 44 I.A. 218, no question of abatement
would arise in respect of the appeal; that the final decree proceed·
ings are a stage in the suit and the appeal is another stage in the
suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enuTe for all stages of the suit.
HELD : (i) On the facts of the case there were no sulfficient
grounds for condoning the delay in bringing the legal representatives
of the 7th respondent on the record.
(ii) The order bringing the legal representatives of the respon•
dent on record in the final decree proceedings cannot enure for the!
benefit of the appeal filed against the preliminary decree. The appeaD
therefore abated so far as the 7th respondent was concerned. [217D)I
·G
An order bringing the legal representatives of a deceased party:
on the record passed at the stage of an interlocutory application in
a suit, or passed while an appeal is pending where the suit is subsequently remanded· to the trial court, or if passed while an appea]
is pending against an interlocutory order in a suit, would enure for
the subsequent stages of the ·suit; in all these cases the order is
made at one stage of the suit, be it the suit or in an appeal agains~
H
the interlocut?ry o~der or final .order in the suit, for heri: the appeal
1s only a contmua!Jon of the smt. But the same legal position cannot
be invoked where an order is made in a suit subsequent to the filing
of an appeal at an earlier stage. Such an order cannot be projected
backwards into the appeal that has already been filed so as to become
an order in that appeal. [216F-217D]
Brij Inder Singh v. Kanshi Ram, 44 I.A. 218 distinguished.
Shankarnaraina Saralaua v. Laxmi Hengsu, A.LR. 1931 Mad. 277.
referred to.
LIB(N)3S.CJ.-i
212
SUPREME COURT REPORTS
[1965] 3 S.C.R.
C1v1L
APPELLATE
JURISDICTION : Civil Miscellaneous PetiA
tion Nos. 2402 of 1964.
Applications for substitution for condonation of delay.
AND
Civil Appeal No. 430 of 1963.
Appeal by special leave from the judgment and decree dated
B
April 8, 1959, of the Bombay High Court in First Appeal No. 6~6
of 1954.
S. G. Patwardhan and A. G. Ratnaparkhi, for' the appel!ant.
Naunit Lal, fer the respondents.
ORDER
Sobba Rao, J. These are two applicatiom, one for the
substitution of the legal representatives of respondent No. 7 in
Civil Appeal No. 430 of 1963 on the file of this Court and the other
for the condonation of delay in filing the first application.
The first question is whether there is sufficient ground fon
excusing the delay in filing the application for bringing the legal
representatives of the 7th respondent on record. The facts arc as
follows : Sakharam Maruti Jedhe and others filed Special Suit
No. IO of 1964 in the Court of the Civil Judge, Senior Division.
Poona, against Rangubai Korn Shanker Jagtap for possession of
the plaint-schedule property and for mesne profits and obtained a
decree therein. Against the said decree defendant preferred an appeal
to the High Court of Bombay. The High Court by its judgment
dated April 8. 1959, dismissed the appeal. The defendant filed an
application for special leave to prefer an appeal to this Court and
the same was granted on June 16, 1959. The appeal was admitted
on July 27, 1961. Between these two dates, on November 12, 1959,
the 7th respondent, Keshavarao Marutirao Jedhe died. Thereafter.
on March 7, 1964, the defendant filed Civil Application No. 11 !8
of 1964 in the High Court of Bombay for bringing on record the
legal representatives of the 7th respondent and for necessary
certificate to that effect. On August 11, 1964, a Division Bench of
the High Court granted the certificate. On February 19, 1964, the
defendant filed in this Court Civil Miscellaneous Petition No. 2401
of 1964 for bringing on record the legal representatives of the 7th
respondent and on October 8. 1964, filed Civil Miscellaneous
Petition No. 2402 of 1964 for condoning the delay of 4 years and
19 days in filing the aforesaid first petition. In the said petition the
petitioner gave two reasons for condoning the delay. namely, (i) the
petitioner is a poor widow living in Poona with her daughters
and there is no male member in the family of the petitioner to
look after the proceedings, and (ii) after the preliminary decree in
the proceedings for the determination of the mesne profits, the
plaintiffs brought the heirs and legal representatives of the
deceased 7th respondent on record within the time prescribed and
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RANGUBAI KOM v. SUNDERABAI (Subba Rao, J.)
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as the legal representatives were brought on record at one Stage
of the suit, no question of abatement would arise in respect of the
appeal. The respondents filed a counter-affidavit pointing out that
there were no grounds for excusing the inordinate delay, that
the appellant had been conducting this long drawn litigation from
the year 1946. that she had a son-in-law who was helping her, that
the deceased was a prominent man of Poona whose death was published in all the newspapers and that the appellant was living in
the same locality and she must have had knowledge of his death
soon after it occurred. It was further pleaded that the fact that
the legal representatives of the 7th respondent were brought on
record in the final decree proceedings could not in law prevent
the abatement of the appeal, if they were not brought on record in
the appeal in time.
Under 0.XVI, r. 14, of the Supreme Court Rules, 1950, an
application to bring on record the legal representatives of a
deceased appellant or respondent shall be made within 90 days of
the death of the said appellant or respondent. Under the proviso
thereto. in computing the said period the time taken in obtaining
a certificate from the High Court shall be excluded. Even if the
said time is excluded, there will be a delay of about 3! years in
filing the application to bring the legal representatives of the
deceased 7th respondent on record. From the counter-affidavit
filed by the respondents it is clear that the 7th respondent was a
prominent citizen of Poona and the fact of his death was published
in all· newspapers; and the petitioner resides very near the place
where the 7th respondent was living. She has been conducting this
litigation from the year 1946 and was in contact with.her Advocates
from time to time in connection with the appeal. She has also a
son-in-law who i~ helping her in the litigation. She had also the
knowledge of the fact that the legal representatives of the 7th
respondent were brought on record in the final decree proceedings.
In the circumstances the fact that she is an illiterate woman cannot
possibly be a ground for excusing this inordinate delay in bringing
the legal representatives of the 7th respondent on record in the
appeal. We, therefore, hold that there is no sufficient ground for
excusing the delay in bringing the legal representatives of the 7th
respondent on record.
The next question raised is an interesting one of law. From
the aforesaid narration of facts it will be seen that· the legal repreH · sentatives of the 7th respondent were brought on record within
the prescribed time in the final decree proceedings. The question is
whether it would enure for the benefit of the appeal; that is to say
whether by reason of that fact there is no abatement of the appeal.
The relevant provisions of the Supreme Court Rules, 1950,
reads thus : We have already given the gist of O.XVI, r. 14 of the
said Rules. Rule 14-A thereof reads:
ll 14
SUPREME
CO(JRT
REPORTS
(196/i] 3 B.G.R .
"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
Supreme Court."
Rule 14-A by reference incorporates the rules of abatement in the
Code of Civil Procedure and also Art. 171 in the First Schedule
to the Indian Limitation Act in the Supreme Court Rules. Under
O.XXII, rr. 3 and 4 of the Code of Civil Procedure, if the plaintiff
or the defendant dies and the right to sue does not survive to the
surviving plaintiff or against the surviving defendant, as the easel
may be, his legal representatives shall be brought on record within
the prescribed time; and where within the time limited by law no
application is made the suit shall abate so far as the deceased
plaintiff is concerned or against the deceased defendant, as the
case may be. Under r. 11 thereof. "in the application of this Order
to appeals, so far as may be, the, word "plaintiff" shall be held to
include the appellant. the word "defendant" a respondent, and the
word "suit" an "appeal". The result is that for the purpose of abatement a suit and an appeal are treated as different proceedings and
the suit or the appeal, as the case may be, abates if the legal repre·
sentatives of the deceased plaintiff or defendant are not brought on
record within the time prescribed. Under Art. 171 of the First
Schedule to the Limitation Act, an application to set aside an order
of abatement shall be made within 60 days from the date of abatement. The result of these· provisions is that if an application to
bring on record the legal representatives of a respondent is not made
within 90 days from the date of death of the said respondent, the
appeal abates; but an application to set aside that abatement can
be made within 60 days from the date of abatement.
But, if by reason of the fact that the legal representatives of
the deceased 7th respondent were brought c>n record in the fina1
decree proceedings, there was no abatement, this Court no doubt
will exercise its discretion liberally in condoning the delay in not
formally getting the legal representatives of a deceased part}!
recorded in appeal in time.
The main contention - therefore, is that by reason of the fact
·that they were brought on record in the final decree proceedings,
there was no abi:tement of the appeal.
It is said that the final decree proceeding is a stage in the suit
and the appeal is another stage in the suit and, therefore, the
bringing on record of the legal representatives in one stag~ of the
suit will enure for all stages of the suit including the appeal. This
<:onclusion, the . argument proceeds, flows from the reasoning of
the judgment of the Judicial Committee in Brij Inder Singh v.
Kanshi Ram('). The relevant facts of that case were these : Pending a suit an application was made for directing a party to produce
(') [1917] L.R. 44 l.A. 218, 228.
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RA'!rGUBAI KOM v . . SUNDERABAI (Subba Rao, J.)
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certain books and that was ordered by the District Judge. Thereafter· an application was made to the Chief Court to revise the
order of the District Judge. Pending the revision the plaintiff and
the 2nd defendant died. Within the prescribed time their legal repri>-
sentatives were brought on record in the revision.
Subsequently
that revision was cjismissed as withdrawn. The legal representatives
of the plaintiff and the 2nd defendant were not brought on record
in the suit within the time prescribed. The question was whether the
suit had abated. The Judicial Committee held that the suit did not
abate and the following reasons were given for that view:
"The plaintiff as representative of the original plaintiff,
and the defendant's representatives of Joti Lal, had been
introduced in the Chief Court. No doubt that was only
done in the course of an interlocutory application as to
the production of books. But the introduction of a plaintiff
or a defendant for one· stage of a suit is an
introouction for all stages, and the prayer, which seems
to have been made ab majorem cautelam, by the plaintiff,
in his application to the District Judge Prenter under
s. 365, was superfluous and of no effect. Coates, the judgment debtor, was only formally called, and the nonpresence of his representatives would afford no ground
for the abatement of the suit."
This judgment is an authority for the position that if the legal
representatives of a deceased plaintiff or defendant are brought on
record in an appeal or revision from an order made in the suit.
that would enure for al! subsequent stages of the suit. The same
principle was sought to be extended in a Madras decision to a
cross appeal: see Shankaranaraina Saralaya v, Laxmi Hengsu(').
There, two appeals were independently filed against the decree in
a suit-one was filed by the plaintiff and the other by the defendant. The plaintiff-appellant died and in the appeal filed by him
his legal representatives were brought on record in time, whereas
it was not so done in the appeal filed by the defendant-respondent.
It was argued that by reason of the fact that the legal representatives of the plaintiff were brought on record in the appeal filed
by him there was no abatement in the appeal filed by the defendant. The Court negatived the contention and when the aforesaid
decision of the Privy Council was cited, it was distinguished on
the following grounds:
"Their Lordships have held that the introduction of a
plaintiff or a defendant for one stage of a suit is an introduction for all stages. When the subject-matter of the
Interlocutory application was pending in the appellate
Court it was deemed to be one stage of the suit and therefore there was no need to put in a fresh application at
a furtlier stage of the suit when it came on for trial before
the first Court. Can it be said in the present case that
(') A.J.R. 1931 J\!'Ml. 277, 278.
SUPREME COURT REPORTS
[1965] 3 •.c.:tt.
what was done in one appeal could enure for the benefit
A
of another appeal unless the latter appeal can be deemed
to be a continuation or a further stage of> the appeal in
which the legal representatives were brought on record?
I am constrained to say that it is difficult to extend the
principle of the decision of the Privy Council to the facts
of this case."
'
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This decision accepts the principle laid down by the Privy Council
but distinguishes the case before it on the ground that the interlocutory appeal is not a continuation or a further stage of the appeal
in which the legal representatives were brought on record. Many
other decisions were cited at the Bar, but they only support the
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position that in· bringing the legal representatives of a deceased
party on record in one appeal wilJ not enure for the benefit nf a
cross appeal.
Let us now consider the question on principle. A combined
reading of Order· XXIL rr. 3, 4 and II, of the Code of Civil
Procedure shows that the doctrine of abatement applies equally
to a suit as well as to an appeal. In the application of the said rr.
3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent" have to be read in those rules. Prima fade,
therefore, if a respondent dies and his legal representatives are not
brought on record within the prescribed time, the appeal abates as
against the respondent under r.4, read with r.11. of 0.XXII of the
Code of Civil Procedure. But there is another principle recognized
by the Judicial Committee in the aforesaid decision which softens
the rigour of this rule. The said principle is that if the legal representatives are brought on 'record within the prescribed time at one
stage of the suit, it will enure for the benefit of all the subsequent
stages of the suit. The application of this principle to different
situations will help to answer the problem presented in the present
case. (!) A filed a suit against B for the recovery of possession and
mesne profits. After the issues were framed, B died. At the stage
of an interlocutory application for production of documents, the
legal representatives of B were brought on record within the time
prescribed. The order bringing them on record would enure for
the benefit of the entire suit. (2) The suit was decreed and an appeal
was filed
in the High Court and was pending therein.
The defendant died and his legal representatives were brought on
record.. The suit was subsequently remanded to the trial Court.
The order bringing the legal representatives on record in the appeal
would enure for the further stages of the suit. (3) An appeal was
filed against an interlocutory order made in a suit Pending the
appeal the defendant died and his legal representatives wero
brought on record. The appeal was dismissed. The appeal being
a continuation or a stage of the suit, the orde~ bringing the legal
representatives on record would enure for the subsequent stages of
the suit. This would be so whether in the appeal the trial Court's
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order was confirmed, modified or reversed. In the above 3 illustrations one fact is common. namely, the order bringing on record
the legal representatives was made at one stage of the suit. be it
m the suit or in an appeal against the interlocutory Drder or final
order made in the suit, for an appeai is only a continuation of the
suit. Whether the appellate order confirms that of the first Court, .
modifies or reverses it, it replaces or substitutes the order appealed
against. It takes its place in the suit and becomes a part of it. It
is as it were the suit was brought to the appellate Court at one
stage and the orders made therein were made in the suit itself.
Therefore, that order cnures for the subsequent stages of the suit.
But the same legal position cannot be invoked in the reverse
or converse situation. A suit is not a continuation of an appeal. An
order made in a suit subsequent to the filing of an appeal at an
earlier stage will move forward with the subsequent stages of the
suit or appeals takeH therefrom; but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly
become an .order in the appeal. Therefore, the order bringing the
legal representatives of the 7th respondent on record in the final
decree proceedings cannot enure for the benefit of the appeal
filed against the preliminary decree. We, therefore, hold that the
appeal abated so far as the 7th respondent was concerned
In the result, the petitions are dismissed.
Petitions dismi.'isel.