SAKHARAM SINCE DECEASED THROUGH LRS & ANR. versus KISHANRAO on 3 August 2022

ORDER

1. Leave granted.

2. These appeals arise out of the judgment and decree of the HighCourt of Judicature at Bombay, Aurangabad Bench, dismissing a Second

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AAppeal as having abated due to the death of one of the respondents anddismissing an application to set aside abatement.

3. Heard learned counsel for both sides.

4. Sans unnecessary details, the facts leading to the aforesaidappeals can be summarized as follows:- B

(i) Two sons of one Tukaram Rodge filed a civil suit for declarationand possession against the two sons of one Gangaram Rodgeimpleading the mother of the plaintiffs as a proforma DefendantNo.3.

(ii) The suit was dismissed by a judgment and decree dated30.06.1982.

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(iii) The unsuccessful plaintiffs filed a Regular First Appeal in C.A.No. 134 of 1982. The First Appellate Court decreed the suit asprayed for, by a judgment and decree dated 30.12.1992.

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(iv) The Defendant Nos. 1 and 2 namely sons of Gangaram fileda Second Appeal in S.A. No. 67 of 1993, on the file of the HighCourt.

(v) The original plaintiffs, namely, the two sons of Tukaram, wereRespondent Nos. 1 and 2 in the Second Appeal and the 3[rd]Defendant, who was only a proforma defendant, was RespondentNo.3 in the Second Appeal.

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(vi) During the pendency of the second appeal, the proformaDefendant No.3, who was Respondent No.3, died on 30.03.1994.Since, her sons were already parties as Respondent Nos. 1 and 2in the Second Appeal, the appeal did not abate on account of thedeath of the proforma Respondent No.3. However, one of thetwo successful plaintiffs, who was the second Respondent in theSecond Appeal, died on 02.02.1996.

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(vii) In view of the above, the High Court thought the appeal hadabated on account of the failure of the appellant to bring on recordthe legal representatives of the deceased second Plaintiff whowas Respondent No.2 in the Second Appeal.

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(viii) The application filed for setting aside abatement was alsodismissed by the High Court. This is why, the Defendant Nos. 1

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and 2, who were the appellants in the second Appeal, have comeup with the above Civil Appeals.

5. Fundamentally, the High Court fell into an error in thinking thatthe Second Appeal abated upon the death of Respondent No.2 (secondPlaintiff).

6. When two plaintiffs joined together and secured a decree ofdeclaration and possession of an immovable property, the death of oneof the decree holders will not make the second appeal abate. As againstthe surviving successful plaintiff, the cause of action survived. Abatementoccurs only when the cause of action does not survive upon or againstthe surviving party.

7. Order XXII Rule 2 of the Civil Procedure Code reads asfollows:-

2. Procedure where one of several plaintiffs or defendants diesand right to sue survives.- Where there are more plaintiffs ordefendants than one, and any of them dies, and where the right tosue survives to the surviving plaintiff or plaintiffs alone, or againstthe surviving defendant or defendants alone, the Court shall causean entry to that effect to be made on the record, and the suit shallproceed at the instance of the surviving plaintiff or plaintiffs, oragainst the surviving defendant or defendants.”

8. The above Rule makes it clear that where there are moredefendants than one and any of them dies and where the right to suesurvives against the surviving defendant, the suit shall proceed againstthe surviving defendant. Order XXII Rule 11 states that in the applicationof Order XXII to appeals, the word “plaintiff” shall be held to include an appellant, the word“defendant” a respondent, and the word “suit” an appeal.

9. Therefore, if the word “defendant” appearing in Order XXIIRule 2 is replaced by the word “respondent”, it will be clear that thesecond appeal did not abate and the right to sue survives against thesurviving respondent.

10. In view of the above, the dismissal of the Second Appeal bythe High Court on the ground that the appeal stood abated, without goinginto the merits of the case is not in accordance with law. Consequentlythe dismissal of the application was also contrary to law.

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[2022] 6 S.C.R.

A11. Therefore, the appeals are allowed. The judgment and decreeof the High Court dismissing the Second Appeal as well as the orderdismissing the application to set aside abatement are set aside and theSecond Appeal is remanded back to the High Court for a freshconsideration on merits.

12. We request the High Court to hear and decide the appeals asearly as possible, preferably within six months from the date ofcommunication of this order.

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Bibhuti Bhushan Bose

Appeals allowed.

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