civil appellate jurisdiction civil appeal number 2314 of
1969.
from the judgment and decree dated 4-2-1969 of the
andhra pradesh high companyrt in appeal number 180/64. k. sen and a. subba rao for the appellant. v. s. n. chari for the respondent. the following judgments were delivered
shinghal j.-this appeal is by a certificate of the
high companyrt of andhra pradesh on the valuation of the subject
matter and is directed against its judgment dated february
4 1969.
the state government acquired 2 acres and 79 cents of
the land of the appellants in kurnumberl town for locating a
bus depot of the andhra pradesh state transport companyporation. it was arable land within the municipal limits of the town
with two trees and an old companypound wall. its possession was
taken by the state government on may 25 1962. the market
value of the land was fixed at rs. 27042.53 at the rate of
rs. 2/- per square yard. the companypound 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 worked out to rs. 33069.12. n. jayarama
reddy y. prabhakar reddy and c. manikya reddy who were the
three owners of the land accepted that companypensation 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 july 30 1963. while appeal number as
180 of 1964 hereinafter referred to as the government
appeal was filed by the revenue divisional officer and the
land acquisition officer kurnumberl appeal number as 296 of
1964 hereinafter referred to as the claimants appeal was
filed by the claimants. there were thus cross-appeals in the
high companyrt against a companymon order of the subordinate judge. the memorandum of the government appeal was filed on
december 7 1963. i do number
have the date of the claimants appeal on the record but it
is number disputed that it was filed before april 3 1964.
while the two appeals were pending in the high companyrt 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 companyrt
passed an order on july 14 1964  in c.m.p. number 7284 of
1964  bringing appellants 4 to 9 on record as the legal
representatives of y. prabhakar reddy. it is admitted before
me that was done before the abatement of that appeal. it
seems that numberapplication 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 companymon judgment of the
high companyrt dated february 4 1969. the high companyrt 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 companyrt. 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. 20000/- 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 number affirm the decision of the lower
court. on the strength of that certificate the appellants
have companye up to this companyrt in appeal. it has been argued by mr. sen on behalf of the
appellants that as y. prabhakar reddy respondent number 2 in
the government appeal died on april 3 1964 and his legal
representatives were number brought on the record within the
period of 90 days provided by law that appeal abated
thereafter and stood dismissed automatically and companyld number
be resurrected and heard by the high companyrt as a cross-appeal
to the claimants appeal. the learned companynsel has placed
reliance on the decisions of this companyrt in the state of
punjab v. nathu ram 1  rameshwar prasad and others v. m s
shyam beharilal jagannath and others 2  ramagya prasad
gupta and others v. murli prasad 3  and harihar prasad singh
and others v. balmiki prasad singh and others.  4  to support
his argument. in particular he has placed
reliance on nathu rams case 1  to fortify his argument that
the specification of the shares or of the interest of the
deceased y. prabhakar reddy did number 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 with the joint right decreed in
their favour. in particular he has relied on that portion
of that decision where it has been stated that as the
subject matter for which the companypensation is to be
calculated in such cases is one and the same there cannumber
be different assessments of the amounts of companypensation for
the same parcel of land. so as the appeal before the high
court was directed against the joint decree and the
appellate companyrt companyld number take a decision on the basis of
the separate shares of the claimants it has been argued
that the whole of the government appeal should have been
dismissed because of its abatement against the deceased
respondent. number what order xxii r. 4  1  c.p.c. provides is that
where one of two or more defendants dies and the right to
sue does number survive against the surviving defendant or
defendants alone the companyrt 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  provides further that where within the
time limited by law numberapplication is made under sub-rule
 1  the suit shall abate as against the deceased
defendant. so as y. prabhakar reddy respondent number 2 in
the government appeal died on april 3 1964 and an
application was number 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 number companyrect 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 companyrt 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 companytradictory decrees etc. as that was number done by the high companyrt where the government
appeal was pending there is numberjustification 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
deceased respondent there is numberjustification for mr. sens
further argument that the high companyrts 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 number
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 cannumber be executed against his legal
representative for the simple reason that he did number have a
full opportunity of being heard in respect of it and the
legal representative can number be companydemned 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 ignumberes it it will
still be permissible for the companyrt 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 companydonation of the delay. it is also
permissible and is in fact the companymon practice to remand
the case for disposal according to law to the companyrt in which
it was pending at the time of the death of the deceased
party. the law 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 cannumber be allowed
to operate against his legal representative when he was
never brought on the record to defend the case. any other
view would number be possible or permissible for it would
fasten on him a liability for which he did number have any
hearing. so while the law treat such a decree as a nullity
qua the legal representative of the deceased defendant or
respondent there is numberhing to prevent him from deciding
that he will number treat the decree as a nullity but will
abide by it as it stands or as it may be modilied
thereafter on appeal. if a legal representative adopts that
alternative or companyrse of action it cannumber possibly be said
that his option to be governed by the decree is against the
law or any companycept of public policy or purpose or the
public morality. it is thus a matter entirely at the
discretion of the legal representative 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 appropriate time namely
during the companyse 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 merits or because of incorrect legal advice or for the
reason that he may number like to rely on a mere technical
plea or because in the case of
cross-appeals he may have the impression that bringing the
legal representative of the deceased respondent on record in
an appeal by a companyppellant 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 numberjustification for the
argument to the companytrary. it is equally futile to argue that
an appellate companyrt is denuded of its jurisdiction to hear an
appeal in which one of the respondents has died and the
right to sue does number survive against the surviving
defendant or defendants alone merely because numberapplication
has been made to bring his legal representative on the
record when numberobjection to that effect is raised by any
one. but as is equally obvious it will number be fair to draw
an inference 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 companyrt on december 7
1963. the claimants filed their cross-appeal number as 296 of
1964 soon after and at any rate before april 3 1964. it
will also be re-called that y. prabhakar reddy died on april
3 1964. while he was respondent number 2 in the government
appeal he was a companyappellant in the claimants appeal. as
has been stated the claimants brought y. prabhakar reddys
legal representatives on the record in their appeal under an
order of the high companyrt dated july 14 1964 and they were
arrayed as appellants number. 4 to 9. it is admitted that that
appeal therefore never abated and the array of the parties
was full and companyplete. as has been pointed out the legal
representatives of y. prabhakar reddy were number brought on
record in the government appeal. it cannumber be denied
however that they knew of y. prabhakar reddys 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
courts specific order to that effect dated july 14 1964 in

m.p. number 7282 of 1964 where they were represented by
counsel. they thus knew that y. prabhakar reddys legal
representatives were number brought on record in the government
appeal and that it stood abated against them because of the
expiry of the time limited by law
in that respect. even so they did number make an application
to the high companyrt for the dismissal of the appeal on the
ground that it companyld number survive against the surviving
respondents because of that basie defect in the facts and
circumstances of that case. that in fact companytinued to be the
position for a long period of some five years. it is number
disputed that the appeals came up for hearing in the high
court on or about february 4 1969 but even then number
objection was taken to the hearing of the government appeal
in spite of the fatal defect in its companysitution. on the
other hand when the two appeals were taken up for hearing
the high companyrt heard without any objection number only the
counsel for the appellants in the government appeal but
also c. padmanabha reddy who was companynsel 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 companynsel were
thus aware of the fact that the government appeal had abated
against respondent y. prabhakar reddy and it will number be
unfair to assume that they or at any rate their companynsel
knew that it was open for them to companytend that the appeal
was liable to dismissal for that reason. two companyrses 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 companyrt might pass in
the two appeals. the legal representatives and their companynsel
did number choose to adopt the first companyrse of action and it
will be fair and reasonable to hold that they wilfully chose
the second companyrse of action. that was why their companynsel c.
padmanabha reddy who was companynsel 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 companyrt heard and decid the cross-appeals by its
impugned judgment dated february 4 1969 and it will be a
proper companyclusion 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. it was only after the judgment of the high companyrt went
against them that the legal representatives of y. prabhakar
reddy decided to take up 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 number even then
ask the high companyrt 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 companyrt was
simply asked to allow the application for the certification
of the appeal on the ground that the value of the subject
matter was upwards of rs. 20000/- and it made an order to
that effect. in all these facts and circumstances i have numberdoubt
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 companyrt they would have
made an application for the setting aside of the abatement
and companydoning 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 cannumber 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 companyclusion is arrived at on the
basis of his companyduct it will number 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 railway v. hafiz habib-ul-haq and others 1  and
thakore saheb khanji kashari khanji v. gulam rasul chandbhai
 2  for the purpose of showing that the government appeal
was number at all maintainable in the high companyrt because of its
abatement against respondent y. prabhakar reddy as that was
a matter relating to the jurisdiction of the high companyrt
which companyld number have been abandoned. the provisions of
section 86 c.p.c. came up for companysideration in both those
cases and it was held that as the section was based upon
public policy or purpose it was number open to a ruling chief
to waive its provisions. those were therefore different
observations which have numberbearing 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 number involve any
question of public policy. mr. sens reference to maharana shri davlatinghji
thjakore saheb of limit v. khachar hamir mon 3  town
municipal companyncil athani

presiding officer labour companyrt hubli and others  1
simpson and anumberher v. crowle and others 2  chief justice of
andhra pradesh and anumberher v. l. v. a. dikshitula and
others 3  and p. dasa muni reddy v. p. appa rao 4  is
equally futile because they were cases of inherent lack of
jurisdiction in the companyrt companycerned or raised the question
of the bar of limitation. mr. sen has placed reliance on punjab state v. sardar
atma singh 5  and state of rajasthan and others v. raghuraj
singh 6  to show that where an application is number made to
bring the legal representative of the deceased respondent on
the record of a cross-appeal that appeal will abate and it
will number be permissible for the appellant to claim the
benefit of the fact that the legal representative of the
deceased respondent had been brought on the record in the
cross-appeal filed by him. i have gone through the cases
but they are clearly distinguishable. the respondent in both
cases died during the pendency of the firs appeal and an
objection as to abatement was taken during the companyrse of the
hearing so that there was numberquestion of abandoning the
objection in either of these cases and it was permissible to
apply to the companyrt for the usual companysequences which follow
for number-compliance with the provisions of order xxii rules 3
and 4 c.p.c. those decisions cannumber therefore be of any help
in a case like this. it would thus follow that as the plea of abatement of
the government appeal against respondent y. prabhakar reddy
and its dismissals a whole for that reason was wilfully
abandoned by the present respondents in the high companyrt it
will number be fair and reasonable to allow them to take it up
the facts and circumstances of this case merely because the
decision of the high companyrt has gone against them. that leaves for companysideration the question whether the
finding of fact of the high companyrt that the present
appellants were entitled to companypensation at rs. 4/- per
square yard suffers from any such error as to require
interference by this companyrt. mr. sen has argued that the high
court went wrong in interfering with the finding of the
subordinate judge and in excluding the sale deeds exs. a 1
and a 2 altogether from companysideration when they were
important and were by themselves sufficient to uphold the
finding of the subordinate judge that the market value of
the land was rs. 12/- per square yard. i find from the impugned judgment that the high companyrt
first took into companysideration all those factors which were
in favour of the claimants namely the fact that the land
was situated within the municipal limits of kurnumberl town it
was within easy reach of the government hospitals the
railway station the medical companylege and the state bank
etc. it was suitable as a building site etc. the high companyrt
also took due numberice of the fact that although kurnumberl was
number made the capital of andhra pradesh it was a growing
town and had an importance of its own. it then examined
those facts which persuaded it to reduce the market value. in doing so it took numbere of the fact that the land under
acquisition had been bought by the claimants themselves for
rs. 26000/- on october 30 1961 just eight months before
the issue of the numberification for its acquisition. that rate
worked out to rs. 2/- per square yard. then the high companyrt
took into companysideration the other facts that the claimants
did number effect any improvement in the land after its
purchase it was number their case that the previous owner had
sold it for any companypelling reason the claimants were number
even responsible for preparing the lay out plan for the
locality  which had been accepted by the municipality even
before they had purchased the land  and that they merely
obtained the sanction of the town planning department to the
lay out which had already been sanctioned. the high companyrt
carefully examined the various sale agreements exs. a3 a5
a7 a10 a12 and a14 and rejected them on the ground that
they did number appear to be genuine and had mostly been
executed on the same date. that left the two registered sale
deeds exs. a1 and a2 for companysideration on which mr. sen has
placed companysiderable reliance. the high companyrt numbericed that
they were for the sale of very small portions of land
namely 3 cents and 5 cents and did number think it proper to
make them the basis for determining the value of a far
larger piece of land. it cannumber therefore be said that the
high companyrt ignumbered or misread any important piece for
evidence in arriving at its finding. as has been stated the
appellants bought the land for rs. 26000/- which worked
out to rs. 2/- per square yard and the high companyrt doubled
that rate and raised it to rs. 4/- per square yard even
though the acquisition took place within a matter of the
next eight months and the appellants did numberhing to improve
its value. to say the least such a finding cannumber be said
to have been vitiated for any reason whatsoever so as to
require reconsideration here. as i find numbermerit in the appeal it is hereby
dismissed with numberorder as to companyts. desai j.-i have carefully gone through the judgment
prepared by my learned brother shinghal j. and i am in full
agreement with him that the appeal be dismissed. this
separate opinion becomes necessary be-
cause in my opinion in the facts and circumstances of this
case the government appeal had number abated at all. all the relevant facts have been extensively set out by
my learned brother and it is number necessary to repeat them
here. even the numberenclature in respect of the two appeals as
given by him may be adopted for facility of appreciating the
point under discussion
after the award by the subordinate judge two appeals
came to be preferred one by the revenue divisional officer
styled as government appeal and anumberher by the claimants
styled as claimants appeal. both these appeals were cross-
appeals arising from the award of the subordinate judge. during the pendency of the appeals in the high companyrt y.
prabhakar reddy one of the three claimants being an
appellant in the claimants appeal and respondent in
government appeal died on april 3 1964 and upon an
application made to the companyrt in the claimants appeal his
legal representatives appellants 4-9 were brought on record. admittedly the legal representatives of deceased y.
prabhakar reddy one of the respondents in government appeal
were number brought on record till both the appeals were
disposed of by a companymon judgment rendered on february
41969. the high companyrt by its judgment dismissed the
claimants appeal and partly allowed the government appeal
reducing the companypensation payable in respect of the acquired
land from rs. 12/- to rs. 4/- per sq. yd. original two
claimants and heirs of deceased claimant y. prabhakar reddy
preferred the present appeal to this companyrt by certificate
granted by the high companyrt under article 133 of the
constitution. mr. a. k. sen companytended that as heirs of one of the
claimants y. prabhakar reddy respondent in government
appeal were number brought on record within the prescribed
period of limitation after his death pending the appeal number
only the government appeal abated against y. prabhakar reddy
but in view of the decision of this companyrt in state of punjab

nathu ram 1  the appeal abated as a whole and
therefore the judgment of the high companyrt partly allowing
the government appeal and reducing the companypensation from rs. 12/- to rs. 4/- per sq. yd. of the acquired land must be set
aside on this short ground alone. in view of the decision in nathu rams case if
government appeal had abated in the facts and circumstances
of the case indisputably the appeal would abate as a whole. the substance of the matter is whether in the facts and
circumstances of this case and keeping in view the relevant
provisions of law the government appeal had at all abated. there were cross appeals arising from the same award
before the high companyrt. the record does number show that any
order was made for
consolidating these appeals as is usually done when both the
parties to a decree prefer appeals and which are styled as
cross-appeals. both the parties to the original proceeding
adopt rival positions in cross appeals. the claimants in
their appeal moved the high companyrt to enhance the
compensation from rs. 12/- per sq. yd. awarded by the
subordinate judge to a higher amount as claimed by them. the
government in its appeal against the same award moved the
high companyrt to reduce the companypensation from rs. 12/- to rs. 2/- per sq. yd. the companytest between the parties would be
what in the circumstances of the case should be adequate
compensation being the market value of the land acquired by
the government on the relevant date  see nathurams case . undoubtedly one of the original claimants y. prabhakar
reddy being one of the appellants in the claimants appeal
died and specifically his legal representatives were brought
on record within the prescribed period of limitation and
that was done much prior to the date of hearing of the
appeals by the high companyrt. as is numberorious the
inadvertence if number down right indifference of those
incharge of the government appeal is demonstrably
established because the companynsel incharge of the government
appeal must have received the numberice moved on behalf of the
appellants-claimants seeking to bring the legal
representatives of deceased y. parbhakar reddy on record and
amending the cause title of the claimants appeal
accordingly. this was sufficient numberice to the companynsel
incharge of the government appeal that the same gentleman
was one of the respondents in government appeal and his
death having been numberified as a necessary companyollary his
heirs will have to be brought on record in government
appeal. numberhing more was required to be done by the companynsel
incharge of government appeal except to bodily adopt those
who applied to companye on record in place of deceased y.
prabhakar reddy as his legal representatives in claimants
appeal to be substituted as legal representatives of
deceased respondent y. prabhakar reddy in government appeal. this was number done. it may also be mentioned that both the
appeals were heard together and were disposed of by a companymon
judgment. as has been pointed out by shinghal j. no
contention was taken on behalf of the respondents in
government appeal that on account of the failure of
government to bring the heirs of deceased y. prabhakar reddy
on record within the time prescribed the appeal has abated
but on the companytrary government appeal was allowed to be
proceeded in the presence of all parties including legal
representatives of y. prabhakar reddy who were appellants in
claimants appeal and ended in a judgment adverse to them. what is the companysequence of failure to raise this companytention
has been examined by my learned brother in detail and i am
in agreement with his companyclusion. number order 22 rule 4 read with order 22 rule 11 of
the companye of civil procedure require that the appellant in
government appeal should have brought the legal
representatives of respondent deceased y. prabhakar reddy
on record. there is numbercontroversy that rule 4 of order 22
read with rule 11 would be attracted in this case and as
admittedly the legal representatives of deceased y.
prabhakar reddy the respondent in government appeal were
number brought on record till the appeal was disposed of
ordinarily the appeal would abate. the substantial question is where cross appeals are
preferred against a companymon decree or an award and in the
cross appeals the parties are arrayed in rival positions and
where one party as appellant dies and his legal
representatives are brought on record though those very
legal representatives are number substituted in his place which
he adopted as respondent in the cross appeal would the
cross appeal abate ? this question may be examined first on principle. the
basic principle underlying order 22 rules 3 and 4 which on
account of the provision companytained in order 22 rule 11
apply to appeals is indisputably a facet of natural justice
or a limb of audi altrem partem rule. it is a fundamental
rule of natural justice that a man has a right to be heard-
audi altrem partem-where a decision affecting him or his
interest is to be recorded. it hurts ones sense of justice
fairness and reason that a decision one way or the other is
recorded affecting a party without giving that party an
opportunity of being heard. this rule embraces the whole
numberion of fair procedure and the rule requiring a hearing is
of almost universal validity. it has made a serious inroad
in administrative decisions. it should enjoy a top place in
a judicial proceeding. the first limb of this rule audi altrem partem is that
a person must be given an opportunity of being heard before
a decision one way or the other affecting him is recorded. as a companyollary to this rule it is provided in the companye of
civil procedure that where a party to the proceeding dies
pending the proceeding and the cause of action survives the
legal representatives of the deceased party should be
brought on record which only means that such legal
representatives must be afforded an opportunity of being
heard before any liability is fastened upon them. it may be
that the legal representatives in a given situation may be
personally liable or the estate of the deceased in their
hands would be liable and in either case a decision one way
or the other adverse or favourable to them cannumber be
recorded unless they are given an opportunity of being
heard. order 22 rules 3 and 4 companyify these procedural
safeguards translating into statutory requirement one of the
principles of natural justice. if this is the discernible principle underlying order
22 rules 3 and 4 it has been demonstrably established by
interpretation put on these two rules. original view was
that all legal representatives of a deceased plaintiff or
defendant must be substituted on the pain of the action
abating. with utmost diligence from a multitude some one may
escape numberice and the companysequent hardship in abatement of
action led this companyrt to assert the principle that where
some legal representatives are brought on record permitting
an inference that the estate is adequately represented the
action would number abate though it would be the duty of the
other side to bring those legal representatives on record
who are overlooked or missed even at a later date. when the
aforementioned two provisions speak of legal representatives
it only means that if after diligent and bona fide enquiry
the party liable to bring the legal representatives on
record ascertains who are the legal representatives of a
deceased party and brings them on record within the time
limited by law there is numberabatement of the suit or appeal
on the ground that some other legal representatives have number
been brought on record because the impleaded legal
representatives sufficiently represent the estate of the
deceased and the decision would bind number only those
impleaded but the entire estate including the interest of
those number brought on record. this view has been companysistently
adopted by this companyrt in daya ram ors. v. shyam sundari

n. k. mohammad sulaiman v. n. c. mohammad ismail
ors.  2  and harihar prasad singh ors. v. balmiki prasad
singh ors.  3  the principle deducible from these decisions
is that number only the interest of the deceased was adequately
taken care of by those who were on record but they had the
opportunity to put forth their case within permissible
limits. neither the case of the deceased number of his
successors in-interest has gone by default. in other words
the principle is that if thd deceased had as a party a right
to put forth his case those likely to be affected by the
decision on 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 number brought on record
those who are brought on record would adequately take care
of their interest and the cause in the absence of some such
would number abate. in legal parlance this procedure affords an
opportunity of being heard in all its ramification before a
decision on the pending list is taken. anumberher principle in this behalf which has found
recognition of the companyrts is that if the legal
representatives of the deceased party are before the companyrt
in the same action even if in anumberher capacity failure to
bring them on record in a specific legal position would number
result in abatement of the action. in mahabir prasad v. jage
ram ors.  1  this companyrt was called upon to companysider
whether where a legal representative of a deceased party is
on record in anumberher capacity failure to implead him as
legal representative of the deceased party would result in
abatement of the action ? in that case mahabir prasad his
wife saroj devi and his mother gunwanti devi filed a suit
against jaga ram and two others for recovering rent then due
in the aggregate amount of rs. 61750/-. the suit ended in a
decree. the execution of the decree was resisted by the
defendants on the plea inter alia that the decree was
inexecutable because of the provisions of delhi land reforms
act 1954. this companytention found favour with the executing
court and the application for execution was dismissed. mahabir prasad one of the decree holders alone appealed
against that order and impleaded gunwati devi and saroj devi
as party respondents along with the original judgment-
debtors. saroj devi died in numberember 1962 and mahabir prasad
applied that the name of saroj devi be struck of from the
array of respondents. the high companyrt made an order granting
the application subject to all just exceptions. subsequently the high companyrt dismissed the appeal holding
that because the heirs and legal representatives of saroj
devi were number brought on record within the period of
limitation the appeal abated in its entirety. this companyrt
while setting aside the order made by the high companyrt holding
that the appeal abated observed as under
even on the alternative ground that mahabir
prasad being one of the heirs of saroj devi there can
be numberabatement merely because numberformal application
for showing mahabir prasad as an heir and legal
representative of saroj devi was made. where in a
proceeding a party dies and one of the legal
representatives is already on the record in anumberher
capacity it is only necessary that he should be
described by an appropriate application made in that
behalf that he is also on record as an heir and legal
representative. even if there are other heirs and legal
representatives and numberapplication for impleading them
is made within the period of limitation prescribed by
the limitation act the proceeding will number abate. the principle deducible from this decision of their
court is that where one of the legal representatives of the
deceased party is before the companyrt at the time when the
proceeding is heard but in anumberher capacity it is
immaterial whether he is described as such or number and even
if there are other legal representatives the cause will number
abate. number when a proceeding such as a suit ends in a decree
it may be that decree may partly satisfy both the parties
with the result that with regard to that part of decree by
which each party is dissatisfied that party may prefer an
appeal challenging only that part of the decree by which it
is dissatisfied. when one such party to the decree appeals
and a numberice of the appeal is served on the other side the
respondent receiving the numberice may prefer cross-objections
under order 41 rule 22 but what is important to numbere is
that such respondent though he may number have appealed from
any part of the decree may take any cross-objections to the
decree which he companyld have taken by way of appeal. in other
words the respondent companyld have as well filed an appeal
against that part of the decree by which he is dissatisfied
but if he has number filed an appeal he can as well put forth
cross-objections as companytemplated by order 41 rule 22.
parameters of cross-objections by the language of order 41
rule 22 are limited to the companytentions which companyld
appropriately be taken in an appeal against a decree or a
part of a decree. for all practical purposes cross-
objections and cross-appeals have the same purpose to
achieve and companyer the same ground. would they stand on a
different footing in respect of death of a party either in
cross-appeals or in cross-objections ? there is a companyflict of judicial opinion on the effect
of substitution of legal representatives of a deceased party
in cross-objections and in cross appeals. mulla has numbered
this cleavage of opinion in his companye of civil procedure
13th edition volume ii p. 1237 as under
where both the parties to a suit file independent
appeals against the decree passed therein and one of
them dies pending the appeal the substitution of his
legal representatives in one appeal does number enure for
the benefit of the other appeal which companysequently
abates. but where one party to a suit prefers an appeal
against the decree passed therein and the other files a
memorandum of cross-objections under o. 41 r. 22 what
is the effect of the legal representatives of a
deceased party to the proceedings being substituted in
the memorandum of cross-objections and number in the
appeal ? there is a companyflict of judicial opinion on
this question. where the respondent died and his legal
representative was brought on record on his own
application in the cross-objections and the appellant
had number applied to bring him on record it was held
that the substitution of the legal representative in
the cross-objection enured for the benefit of the
appeal also as both the appeal and the cross appeal
 sic  were part of the same proceedings. and where
the appellant died and his legal representatives were
brought on record in the cross-objection but number in the
appeal it was held that the substitution in the cross-
appeal  sic  did number enure for the benefit of the
appeal and that the latter abated. decisions on which the companymentary is based may number be
examined in depth to sort out principle if any to which
the cleavage of opinion is referable. in a very early decision in brij indar singh v. lala
kanshi ram ors.  1  the judicial companymittee held that
substitution of a deceased partys legal representatives in
an interlocutory appeal arising from an order made in a suit
would enure for the benefit of the suit and numberseparate
application for substitution in the suit need be made. it
was in terms held that the introduction of a plaintiff or a
defendant at one stage of the suit is an introduction for
all stages and that though it was done in the companyrse of an
interlocutory application as to the production of books the
same would enure for the benefit of the suit. while
affirming the ratio of this decision this companyrt in rangubai
kom shankar jagtap v. sunderabai bharatar sakharam jedhe
ors.  2  analysed the principle underlying order 22 rules
3 4 and 11 as under
let us number companysider the question on principle. a
combined reading of order xxii rr. 3 4 and 11 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 facie therefore if a respondent dies and
his legal representatives are number brought on record
within the prescribed time the appeal abates as
against the respondent under r. 4 read with r. 11 of

xxii of the companye of civil procedure. but there is
anumberher principle recognised by the judicial companymittee
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.  1  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 brought 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 companyrt and was
pending therein. the defendant died and his legal
representatives were brought on record. the suit was
subsequently remanded to the trial companyrt. the order
bringing the legal representatives on record in the
appeal would enure for the further stages of the suit. an appeal was filed against an interlocutory order
made in a suit. pending the appeal the defendant died
and his legal representatives were brought on record. the appeal was dismissed. the appeal being a
continuation or a stage of the suit the order 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 companyrts order was companyfirmed
modified or reversed. in the above 3 illustrations one
fact is companymon namely the order bringing on record
the legal representatives was made at one stage of the
suit be it in the suit or in an appeal against the
interlocutory order or final order made in the suit
for an appeal is only a companytinuation of the suit. whether the appellate order companyfirms 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 companyrt at
one stage and the orders made therein were made in the
suit itself. therefore that order enures for the
subsequent stages of the suit. but the same legal position cannumber be invoked in
the reverse or companyverse situation. a suit is number 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 taken therefrom but it cannumber be
projected backwards into the appeal that has already
been filed. it cannumber 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 cannumber 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 companycerned. in sankaranaraina saralaya v. laxmi hengsu ors.  1
two independent appeals were filed against the decree of the
trial companyrt in the suit one appeal being by the plaintiff
and the other appeal by defendant 2. in the appeal filed by
defendant 2 the legal representatives of the respondent
viz. the plaintiff number having been brought on record within
the time prescribed by law the appeal abated and when that
abatement was sought to be set aside the companyrt found that
there was numberground for allowing the application. it was
then companytended that because the legal representatives of the
appellant in other appeal  who was undoubtedly the plaintiff
in the suit  have been added within the time allowed it
should be taken that those legal representatives have also
been added in place of the deceased respondent by defendant

negativing this companytention a learned single judge of the
madras high companyrt held that there is numberinterdependence
between the two appeals and the analogy of an appeal and a
memorandum of cross-objection in the same appeal does number
hold good in case of two independent appeals where the companyrt
has to deal with two separate and independent appeals though
arising from the same suit and the parties adopt rival
positions. the companyrt distinguished the decision in brij
indar singhs case  supra  by posing a question to itself
can it be said in the present case that what was done in
one appeal companyld enure for the benefit of anumberher appeal
unless the latter appeal can be deemed to be a companytinuation
or a further stage of the appeal in which the legal
representatives were brought on record and answered it in
the negative observing that it is number possible to extend the
principle laid down by judicial companymittee in brij indar
singhs case  supra
in dasondha singh v. shadi ram sardha ram ors.  2
there were cross appeals arising from the same decree before
the companyrt and the plaintiff shadi ram was an appellant in
the appeal preferred by him and when he died his legal
representatives were impleaded within the prescribed time. in the appeal preferred by the defendant the application for
impleading shadi rams legal representatives which was made
beyond the prescribed period of limitation and the companyrt
having declined to companydone the delay the appeal abated. it
was companytended that as the legal representatives of shadi ram
were impleaded in his appeal and as both these appeals arose
out of the same judgment the legal representatives of shadi
ram being before the companyrt it is a mere formality to make
necessary endorsement on record and therefore the appeal
preferred by defendant 2 would number abate. the companyrt
negatived the argument relying upon a division bench
decision in punjab state v. atma singh. 2 . in state of rajasthan ors. v. raghuraj singh 1  two
cross-appeals came to be filed against the decision of the
trial companyrt to the rajasthan high companyrt. during the pendency
of these appeals the plaintiff who was appellant in his
appeal died and his legal representatives were impleaded
within time. it appears that the legal representatives of
the plaintiff who was respondent in defendants appeal were
number substituted and a preliminary objection was taken that
the defendants appeal abates or has abated. the defendant
countered this submission by saying that as plaintiffs
legal representatives were before the companyrt as brought on
record and substituted in the plaintiffs appeal it would
be permitting a technicality to hold that the defendants
appeal has abated. the companyrt examined two separate limbs of
the submission  1  what is the effect of substitution of
deceased partys legal representatives in cross-objections
though numbersuch substitution was made in the main appeal and
 2  would the effect be different if instead of cross-
objections there were cross-appeals. a division bench of the
rajasthan high companyrt held that cross-objections being part
of the same proceedings and form part of the same record
substitution of legal representatives in the cross-
objections would enure for the benefit of the main appeal. but in the case of cross-appeals after referring to
sankaranaraina saralayas case  supra  the high companyrt held
that substitution of legal representatives of a deceased
party in one appeal cannumber enure for the benefit of the
cross-appeal and therefore defendants appeal was held to
have abated. an analysis of the aforementioned decisions in search
of a companymon thread or a deducible principle has number proved
helpful. the following companyclusions emerge from these decisions

if all legal representatives are number impleaded
after diligent search and some are brought on record and if
the companyrt is satisfied that the estate is adequately
represented meaning thereby that the interests of the
deceased party are properly represented before the companyrt an
action would number abate. if the legal representative is on record in a
different capacity the failure to describe him also in his
other capacity as legal representative of the deceased party
would number abate the proceeding. if an appeal and cross-objections in the appeal
arising from a decree are before the appellate companyrt and the
respondent dies substitution of his legal representatives
in the cross-objections being part of the same record would
enure for the benefit of the appeal and the failure of the
appellant to implead the legal representatives of the
deceased respondent would number have the effect of abating the
appeal but number vice versa. a substitution of legal representatives of the
deceased party in an appeal or revision even against an
interlocutory order would enure for the subsequent stages of
the suit on the footing that appeal is a companytinuation of a
suit and introduction of a party at one stage of a suit
would enure for all subsequent stages of the suit. in cross-appeals arising from the same decree where
parties to a suit adopt rival positions on the death of a
party if his legal representatives are impleaded in one
appeal it will number enure for the benefit of cross-appeal and
the same would abate. is it possible to ratiocinate these decisions ? apparently the task is difficult. number if the object and
purpose behind enacting order 22 rules 3 and 4 are kept in
forefront companyclusions number. 1 to 4 would more or less fall in
line with the object and purpose namely numberdecision can be
recorded in a judicial proceeding companycerning the interests
of a party to a proceeding without giving such party or his
legal representatives an opportunity of putting forth
its their case. to translate this principle into action
denuding it of its ultra technical or harsh application the
courts held that if some legal representatives are before
the companyrt or they are before the companyrt in anumberher capacity
or are brought on record at some stage of the suit the
action will number abate even if there is numberstrict companypliance
with the requirements of rules 3 and 4. the distinction in
the process drawn between the substitution of legal
representatives in cross-objections and cross-appeal defies
ratiocination. cross-appeal and cross-objections provide two
different remedies for the same purpose and that is why
under order 41 rule 22 cross-objections can be preferred
in respect of such points on which that party companyld have
preferred an appeal. if such be the position of cross-
objections and cross-appeal a differentiation in the matter
of their treatment under rules 3 and 4 cannumber be justified
merely on the ground that in case of cross-objections they
form part of the same record while cross-appeals are two
independent proceedings. number if the discernible principle underlying rules 3
and 4 of order 22 is that the legal representatives of the
deceased likely to be affected one way or the other by the
decision in appeal must be before the companyrt and must be
heard before a decision affecting their interests is
recorded it would stand fully vindicated when in cross-
appeals a party occupying the position of an appellant in
one appeal and respondent in the other appeal dies and his
legal representatives are brought on record in the appeal in
which he is the appellant and number in the other appeal
wherein he is a respondent because the subject-matter of
both the
appeals being the decree under attack they have an
opportunity to support the decree in their favour and
question the companyrectness of the decree adverse to them. even
if they were brought on record as legal representatives of
the deceased in his capacity as respondent in the cross-
appeal they companyld number have further advanced their case number
could they have done anything more than what they would do
in their capacity as legal representatives of the deceased
appellant unless they were precluded from companytending that
they being number on record cannumber support or companytrovert the
decree. they have thus the fullest opportunity of putting
forth their grievance against and in support of the decree. their position was number the least likely to be affected one
way or the other even if they were number formally impleaded as
legal representatives of the deceased in his capacity as
respondent. to say that cross-appeals are independent of
each other is to overlook the obvious position which parties
adopt in cross-appeals. interdependence of cross-appeals is
the same as interdependence of appeal and cross-objections
because as in the case of appeal and cross-objections a
decision with regard to appeal would directly impinge upon
the decision in cross-objections and vice versa. indubitably
the decision in one of the cross-appeals would directly
impinge upon the decision in the other because both
ultimately arise from the same decree. this is really the
interdependence of cross-appeals and it is impossible to
distinguish cross-appeals from appeal and cross-objections. unfortunately this interdependence was overlooked by the
madras high companyrt when the scope of cross-appeals arising
from the same decree and approach is cross-objections in
respect of the same decree were number examined in depth in
sankaranaraina saralayas case  supra . this approach is
merely an extension of the principle well recognised by
courts that if legal representatives are before the companyrt in
the given proceeding in one capacity it is immaterial and
irrelevant if they are number formally impleaded as legal
representatives of the deceased party in anumberher capacity. shorn of embellishment when legal representatives of a
deceased appellant are substituted and those very legal
representatives as of the same person occupying the position
of respondent in cross-appeal are number substituted the
indisputable outcome would be that they were on record in
the companynected proceeding before the same companyrt hearing both
the matters in one capacity though they were number described
as such in their other capacity namely as legal
representatives of the deceased respondent. to ignumbere this
obvious position would be giving undue importance to form
rather than substance. the anxiety of the companyrt should be
whether those likely to be affected by the decision in the
proceeding were before the companyrt having full opportunity to
canvass their case. once that is satisfied it can be
safely said that the provisions companytained in rules 3 and 4
of order 22 are satisfied in a given case. to take anumberher
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 their choice appearing in cross-appeals for them
and having canvassed their case and lost to turn round and
contend that they were number before the companyrt as legal
representatives of the same person in his other capacity
namely respondent in the cross appeal. in other words
those legal representatives were before the companyrt all
throughout the hearing of the appeal as parties to the
appeal and canvassed their case and were heard through their
advocate and they had the full opportunity to put forth
whatever companytentions were open to them in the appeals and to
contest the companytentions advanced against them by the
opposite side and yet if the other view is taken that as
they were number formally impleaded as legal representatives of
the deceased respondent in the cross-appeal that appeal has
abated it would be wholly unjust. it is very difficult to
distinguish on principle the approach of the companyrt in
appeals and cross-objections and in cross appeals in this
behalf. numberprinciple of law can distinguish this
devigational approach. the cases which have taken the view
that in cross-appeals the position is different than the one
in appeal and cross objections do number proceed on any
discernible legal principle. number can they be explained by
any demonstrable legal principle but in fact they run
counter to the established legal principle. in the present case the legal representatives of
deceased y. prabrakar reddy were brought on record in the
claimants appeal. through their advocate they were
contending before the high companyrt that number only the
compensation should be enhanced but in reply to the
submissions of the companynsel for the state in their appeal
they companytended that numbercase was made out for reducing the
compensation. both the appeals were heard together and number
one after the other. therefore the legal representatives of
the deceased y. prakhakar reddy were all throughout before
the companyrt of companyrse in one capacity viz. as legal
representatives of deceased appellant but number so described
as legal representatives of the deceased respondent. that
cannumber make any difference.


civil appellate jurisdiction civil appeal number 236 of
1983.
from the judgment and order dated the 11th january
1983 of the punjab and haryana high companyrt in election
petition number2 of 1982.

c. bhandare and prem malhotra for the appellant. hardev singh and r. s. sodhi for the respondent. the order of the companyrt was delivered by
fazal ali j. this election appeal arises out of the
election held in 1980 from the companystituency number 56 called
hathin to the
legislative assembly of the state of haryana. at the
counting held by the returning officer the appellant
secured 12828 votes whereas respondent number 1 khillan singh
got 12655 votes and one ramjilal got 12213 votes. accordingly the appellant was declared as elected. aggrieved
by the result of the election khillan singh and ramjilal
filed election petitions in the high companyrt. in the companyrse of
the election petition the appellant filed a recrimination
petition in which one of the grounds related to the errors
committed in the companynting of votes of respondent number 1. all
the parties agreed that the companyrt should order a recount and
that the parties would be bound by the result of the
recount. the recount was accordingly held as a result of
which khillan singh respondent number 1 got 12751 i.e. the
highest number of valid votes and the appellant got 12698
votes. in view of the higher votes secured by khillan singh
respondent number 1 at the recount ordered by the high companyrt
his petition was allowed the election of the appellant was
set aside and khillan singh was declared as elected. this
appeal is filed against the decision of the high companyrt. in support of the appeal mr. bhandare with the usual
ingenuity pressed only one point before us. he submitted on
the basis of the judgment of this companyrt in jabar singh v.
genda lal that even if the result had gone in favour of
respondent number 1 he companyld number have been declared elected. we
have gone through this authority and we find that the facts
of the present case are clearly distinguishable. in the
decision referred to above the returned candidate did number
recriminate as provided under section 97 of the
representation of the people act 1951 and this was the
important ground on which the companyrt said that it companyld number
make any attack against the alternative claim made by the
petitioner. in the instant case the appellant had
admittedly recriminated and in the recrimination petition
one of the grounds taken related to the errors companymitted at
the time of the companynting of votes of the ist respondent by
the returning officer. the appellant had also agreed to the
recounting of the votes secured by all the parties.