Order XLI Rule 4 CPC No Shield Against Abatement In Joint Appeals Without Substitution Of Deceased Party's LRs : Supreme Court

The Supreme Court on Friday (July 18) clarified that a remedy under Order XLI Rule 4 CPC (which allows one party to appeal on behalf of others if the decree is based on common grounds) does not apply when all defendants jointly appeal and one dies without substitution.

The bench comprising Justices PS Narasimha and Manoj Misra heard the case where the Appellants/defendants challenged the MP High Court's decision dismissing their Second Appeal as abated as per Order XII Rule 3 CPC, on the ground that they failed to timely substitute the legal representatives of one of the defendant (who died during the pendency of the Second Appeal) while assailing the 'joint and indivisible' decree passed against them by the First Appellate Court.

Before the Supreme Court, the Appellants argued that non-substitution of the deceased defendant's LRs would not be fatal to their case as there exists a remedy under Order XLI Rule 4 CPC granting them the right to appeal without substitution on behalf of other defendants if the decree was based on common grounds.

Rejecting their argument, the judgment authored by Justice Misra ruled that remedy under Order XLI Rule 4 CPC would have been available to the Appellant/Defendants only when one of the defendant would have filed the Appeal instead of a joint appeal, and other defendants would have become a proforma Respondents (i.e., amongst multiple defendants if one of the defendant's files an appeal making other defendants as Respondents).

“As the second appeal was jointly filed by the two defendants, the benefit of the provisions of Order XLI Rule 4 CPC was not available to the surviving defendant appellant to continue with the second appeal and seek for reversal or modification of the decree operating against the deceased-appellant as well.”, the court said.

“Where an appeal is filed by any one or some of the plaintiffs, or defendants, aggrieved by the decree, by impleading other such plaintiff(s) or defendant(s) as proforma-respondent(s), in the event of death of such proforma-respondent, the benefit of the provisions of Order XLI Rule 4 would be available to continue the appeal regardless of substitution of LRs of such proforma-respondent.”, the court observed.

The Court referred to Rameshwar Prasad & Ors. v. Shambehari Lal Jagannath & Anr., AIR 1963 SC 1901, and distinguished it from Mahabir Prasad v. Jage Ram & Ors., (1971) 1 SCC 265. It observed that the ruling in Mahabir Prasad was not applicable to the present case, as in that matter, the decree was partly against multiple decree-holders, but only one of them filed an appeal while the others were merely arrayed as party respondents. The factual scenario differed significantly from the case at hand. Instead, the Court held that Rameshwar Prasad was relevant where all the plaintiffs whose suit had been dismissed had jointly appealed, and the appeal abated in its entirety due to the failure to substitute the legal heirs of one deceased appellant after the appeal was filed.

The Court summarized the law on the interplay between the provisions of Order XLI Rule 4 and Order XXII of CPC qua abatement of an appeal, as under:

i. Rule 4 of Order XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. A plaintiff or defendant can take advantage of this provision, but he may not. Therefore, once an appeal is filed by all the plaintiffs or defendants aggrieved by the decree, the provisions of Order XLI, Rule 4 become unavailable.

ii. Rule 4 of Order XLI is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The court in such an appeal may reverse or vary the decree in favour of all the parties who are having the same interest as the appellant, even though they have not appealed against the decree. This is so, because it is not the law that when a decree is passed on a ground common to all the parties, the appeal is to be filed by all the parties or not at all.

iii. Order XXII applies without exception to all proceedings covered by it. It operates during the pendency of a proceeding including an appeal and not at its institution. Therefore, if an appellant dies during the pendency of the appeal, his legal representatives must be brought on record within the period of limitation. If that is not done, the appeal by the deceased appellant abates.

iv. Where an appeal is filed by any one or some of the plaintiffs, or defendants, aggrieved by the decree, by impleading other such plaintiff(s) or defendant(s) as proforma-respondent(s), in the event of death of such proforma-respondent, the benefit of the provisions of Order XLI Rule 4 would be available to continue the appeal regardless of substitution of LRs of such proforma-respondent.

v. There is no inconsistency between the provisions of Order XXII and those of Rule 4 of Order XLI CPC. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.

Cause Title: SURESH CHANDRA (DECEASED) THR. LRS. & ORS. VERSUS PARASRAM & ORS.

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Also From Judgment: 'Appeal Fully Abates If LRs Of Deceased Party In Joint Decree Not Substituted', Supreme Court Summarises Law On Suit Abatement