SAKHARAM SINCE DECEASED THROUGH LRS & ANR.versusKISHANRAO

                          [2022] 6 S.C.R. 901                             901


   SAKHARAM SINCE DECEASED THROUGH LRs & ANR.                             A
                                  v.
                            KISHANRAO
                  (C.A. Nos. 5067 – 5068 of 2022)
                          AUGUST 3, 2022                                  B
 [INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
       Code of Civil Procedure, 1908 – Or.XXII, rr.2 and 11 –
Dismissal of Second Appeal by High Court on the ground that the
appeal stood abated – Challenge to – Held: On facts, High Court
                                                                          C
fell into an error in thinking that the Second Appeal abated upon
the death of Respondent No.2 (second Plaintiff) – When two plaintiffs
joined together and secured a decree of declaration and possession
of an immovable property, the death of one of the decree holders
will not make the second appeal abate – As against the surviving
successful plaintiff, the cause of action survived – Abatement occurs     D
only when the cause of action does not survive upon or against the
surviving party.
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5067-
5068 of 2022.
       From the Judgment and Order dated 08.04.2019 of the High Court     E
of Judicature of Bombay Bench at Aurangabad in Second Appeal No.
67 of 1993 and Order dated 08.06.2021 in Civil Application No.6740 of
2019 and Second Appeal No. 67 of 1993.
      Shashibhushan P. Adgaonkar, Omkar J. Deshpande, Advs. for
the Appellants.                                                           F

      Ms. Rohini Wagh, Ilin Saraswat, Aalekh Wagh, Devendra Kumar
Shukla, Advs. for the Respondent.
      The following Order of the Court was passed:
                              ORDER                                       G
      1. Leave granted.
      2. These appeals arise out of the judgment and decree of the High
Court of Judicature at Bombay, Aurangabad Bench, dismissing a Second
                                                                          H
                                 901
902            SUPREME COURT REPORTS                            [2022] 6 S.C.R.


A     Appeal as having abated due to the death of one of the respondents and
      dismissing an application to set aside abatement.
            3. Heard learned counsel for both sides.
            4. Sans unnecessary details, the facts leading to the aforesaid
      appeals can be summarized as follows:-
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            (i) Two sons of one Tukaram Rodge filed a civil suit for declaration
            and possession against the two sons of one Gangaram Rodge
            impleading the mother of the plaintiffs as a proforma Defendant
            No.3.

C           (ii) The suit was dismissed by a judgment and decree dated
            30.06.1982.
            (iii) The unsuccessful plaintiffs filed a Regular First Appeal in C.A.
            No. 134 of 1982. The First Appellate Court decreed the suit as
            prayed for, by a judgment and decree dated 30.12.1992.
D           (iv) The Defendant Nos. 1 and 2 namely sons of Gangaram filed
            a Second Appeal in S.A. No. 67 of 1993, on the file of the High
            Court.
            (v) The original plaintiffs, namely, the two sons of Tukaram, were
            Respondent Nos. 1 and 2 in the Second Appeal and the 3rd
E           Defendant, who was only a proforma defendant, was Respondent
            No.3 in the Second Appeal.
            (vi) During the pendency of the second appeal, the proforma
            Defendant No.3, who was Respondent No.3, died on 30.03.1994.
            Since, her sons were already parties as Respondent Nos. 1 and 2
F           in the Second Appeal, the appeal did not abate on account of the
            death of the proforma Respondent No.3. However, one of the
            two successful plaintiffs, who was the second Respondent in the
            Second Appeal, died on 02.02.1996.
            (vii) In view of the above, the High Court thought the appeal had
G           abated on account of the failure of the appellant to bring on record
            the legal representatives of the deceased second Plaintiff who
            was Respondent No.2 in the Second Appeal.
            (viii) The application filed for setting aside abatement was also
            dismissed by the High Court. This is why, the Defendant Nos. 1
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  SAKHARAM SINCE DECEASED THROUGH LRs & ANR. v.                                 903
                  KISHANRAO

      and 2, who were the appellants in the second Appeal, have come            A
      up with the above Civil Appeals.
       5. Fundamentally, the High Court fell into an error in thinking that
the Second Appeal abated upon the death of Respondent No.2 (second
Plaintiff).
       6. When two plaintiffs joined together and secured a decree of           B
declaration and possession of an immovable property, the death of one
of the decree holders will not make the second appeal abate. As against
the surviving successful plaintiff, the cause of action survived. Abatement
occurs only when the cause of action does not survive upon or against
the surviving party.                                                            C
      7. Order XXII Rule 2 of the Civil Procedure Code reads as
follows:-
      2. Procedure where one of several plaintiffs or defendants dies
      and right to sue survives.- Where there are more plaintiffs or
      defendants than one, and any of them dies, and where the right to         D
      sue survives to the surviving plaintiff or plaintiffs alone, or against
      the surviving defendant or defendants alone, the Court shall cause
      an entry to that effect to be made on the record, and the suit shall
      proceed at the instance of the surviving plaintiff or plaintiffs, or
      against the surviving defendant or defendants.”                           E
       8. The above Rule makes it clear that where there are more
defendants than one and any of them dies and where the right to sue
survives against the surviving defendant, the suit shall proceed against
the surviving defendant. Order XXII Rule 11 states that in the application
of Order XXII to appeals, the word                                              F
      “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 XXII
Rule 2 is replaced by the word “respondent”, it will be clear that the
second appeal did not abate and the right to sue survives against the           G
surviving respondent.
       10. In view of the above, the dismissal of the Second Appeal by
the High Court on the ground that the appeal stood abated, without going
into the merits of the case is not in accordance with law. Consequently
the dismissal of the application was also contrary to law.                      H
904             SUPREME COURT REPORTS                       [2022] 6 S.C.R.


A            11. Therefore, the appeals are allowed. The judgment and decree
      of the High Court dismissing the Second Appeal as well as the order
      dismissing the application to set aside abatement are set aside and the
      Second Appeal is remanded back to the High Court for a fresh
      consideration on merits.
B           12. We request the High Court to hear and decide the appeals as
      early as possible, preferably within six months from the date of
      communication of this order.


      Bibhuti Bhushan Bose                                     Appeals allowed.
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