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Baij Nath And Anr. vs Ram Bharose And Ors. on 10 April, 1953 cites

Amarsangji Indrasangji vs Desai Umed on 29 August, 1924

Obviously, this rule does not apply to different appeals on a common ground unless they have been consolidated. See -- 'Amarsangji v. Desai Umed', AIR 1925 Bom 290 (J). But It does apply to a case where the decree proceeds on any ground common to all the plaintiffs or to all the defendants. It does lay down a discretionary rule for the guidance of the Court that, where, for example, the Court of first instance finds in favour of the possession of a party and that party was dispossessed by three persons who were defendants in the suit and who put up a joint defence and only one of them appeals from the decree, the decree may be reversed not only in favour of the party who has appealed but also in favour of those defendants who have preferred no appeal.
Bombay High Court Cites 0 - Cited by 43 - Full Document

Maha Mangal Rai And Ors. vs Kishun Kandu on 10 January, 1927

21. Attention may also be drawn to the case of -- 'Mahamangal Rai v. Kishun Kandu', AIR 1927 All 311 (N), in which a learned single Judge of this Court held that the power vested in an appellate Court by Order 41, Rule 4 to reverse or vary the decree appealed from in favour of all the plaintiffs or all the defendants is not restricted to cases in which the plaintiffs or defendants who have not appealed are made parties to the appeal. It was held that the power could be exercised by the appellate Court even if the plaintiffs or defendants who had not appealed were not made parties to the appeal. We have pointed out that the words of Order 41, Rule 4 are of the widest character possible, but can it be inferred from the language employed that the legislature deliberately empowered the appellate Court to reverse or vary the decree in favour of all the plaintiffs or all the defendants, even where one of appealing defendant had died and the suit against him had abated. It is obvious that every party to a suit has a right to appeal against a decree by which he is aggrieved and the mere omission of other parties to the suit, who are equally aggrieved, not to join hands with him in preferring an appeal cannot debar an appellate Court to grant an appropriate relief to the party who has appealed. But can it be said that a defendant who appealed and died during the pendency of the appeal, his heirs not having been brought on the record, continues to be a party at all. Obviously he has ceased to be a defendant and his heirs and legal representatives, assuming he has any, cannot be treated as if they were parties to the appeal or the suit.
Allahabad High Court Cites 10 - Cited by 9 - Full Document

Ram Sarup vs Jagdish Narain And Anr. on 14 September, 1933

"Where within the time limited by law no application is made under sub-r. (1), the suit shall abate as against the deceased defendant." Now it is well known that the right to sue includes the "right to appeal" when a party dies pending appeal vide -- 'Ram Sarup v. Jagdish Narain', AIR 1934 All 1029 (H). On a proper reading of the rate, the position seems to be that on the death of one of the defendants, the question of bringing his legal representatives on record will arise only if the right to sue survives. That is to say if the rights of the decea3ed were personal to him, the right to sue will not survive to or against his legal representatives on the maxim 'actio personalis moritur cum periona' --a personal right of action dies with the person. If, however, right to sue survives, then we have to find out whether the surviving defendants are such persons as could represent the deceased or in other words, whether the rights of the dying defendant vest in the surviving defendants. If the right to sue vests in them, no question of any abatement arises. Only the name of the deceased defendant is deleted and the case or appeal proceeds. Where the surviving defendants do not represent the deceased, the necessity of bringing his legal representatives arises, and as laid down in Sub-rule 3, if the legal representatives are not brought on record within the time limited by law, the suit or appeal shall abate only as against the deceased defendant. In this case as Brij Bhukhan's legal representatives were not brought on record within time, the appeal has abated, and the decree of the lower Court has become final as against Brij Bhukhan. This partial abatement gives rise to the question whether a partial abatement can render the whole appeal ineffective and if so in what circumstances. The question in other words is whether partial abatement can ever operate as an abatement of the whole appeal. It is to this question that I propose to confine myself at present.
Allahabad High Court Cites 0 - Cited by 1 - Full Document
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