BIBIJAN AND ORS.versusMURLIDHAR AND ORS.

A                             BIBIJAN AND ORS.
                                       v.
                           MURLJDHAR AND ORS.

                             NOVEMBER 15, 1994

B             [K. RAMASWAMY ANON. VENKATACHALA,JJ.]

        Civil Proced_ure Code, 1908-0rder XX//, Rule 4 rlw Rule
    11/Limitation Act, 1963-Artic/es 120 and 121-Appeal-Joint and
    inseverable decree of redemption-Death of appellants No. 1 and 5 during
    pendency of appeal-No application made to bring on record legal
c   representatives of deceased appellants-Abatement of their appeal-
    Whether appeal of other appellants also abates-Held, Yes-Entire appeal
    stands abated

         The respondent had filed a suit for redemption of usufructuary
    mortgage. The trial court dismissed the suit as being barred by
D   limitation. On appeal, it was confirmed. The High Court in second
    appeal granted a preliminary decree for redemption holding that the ·
    mortgage acknowledged the mortgage and that, therefore, limitation
    starts running from the date of the acknowledgement which would give
    fresh cause of action for filing a suit for redemption and possession.
E   This appeal by special leave has been filed against the judgment of tbe
    High Court.

        During the pendency of the appeal, appellant No. 1 and appellant
    No. 5 died. No step had been taken to bring the legal representatives of
    appellant Nos. 1 and 5 on record. Their appeal stood abated. The
F   question that arose was whether the appeal of other appellants also
    abates.

         Dismissing the appeal, this Court

        HELD: Admittedly PS no applications had been made to bring on
G   record the legal representatives of the deceased appellants Nos. 1 and 5
    from the respective dates, before the expiry of 90 days, this appeal
  1
    stood abated. The. question is whether the appeal of other appellants
    also abates. It was the joint and inseverable decree of redemption
    granted in favour of respondents, which was questioned in the appeal.
    When that decree of redemption against appellants I and 5 had come to
H stand because of abatement of their appeal, that decree of redemption
                                       496
                           BIBIJAN v. MURLIDHAR                            497

 against appellants 2 to 4 alone cannot be set aside, for in that event A
 decree of redemption made .against appellants 1 to 5 questioned in the
 appeal would stand while the decree against appellants 2 to 4 alone
 calls be set aside. Since the decree for redemption being joint and
 inseverable,' the appeal cannot be continued. In this view of the matter
 the entire appeal stands abated. (498-D-F)
                                                                                 B
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2737/80.

    From the Judgment and Order dated 12.2.79 of the High Court of
 Bombay in Second Appeal No. 719170.

      S. Uday Kr. Sagar, for P.H. Parekh, Uma Datta for the Respondents.         C
      The following Order of this Court was delivered:

       This appeal arises from the judgment of the High Court of Bombay at
  Aurangabad in S.A. No. 719 of 1970 dated February 21, 1979. The
  respondent had filed the suit for redemption of usufructuary mortgage dated D
   15th Awarded 1321 Fasli, 1912 A.D., hypothecated for a sum of Rs.
  9200--0.S. by the~ predecessors-in-interest. The trial court dismissed the
  suit as being barred by limitation. On appeal, it was. confirmed. The High
  Court in second appeal, held that the mortgagee acknowledged the
  mortgage and that, therefore, limitation starts running from the date of the
  acknowledgement by the respondents predecessors-in-interest which would E
  give fresh cause of action for filing a suit for redemption ·and possession.
  Indisputably, the gift deed executed by the donor in .favour of the
  respondent-donee clearly mentioned the mortgage and made a part of the
· deed of gift. Thus, the finding of the High Court that the recitals in the gift
  deed constitute acknowledgement is perfectly legal. Accordingly the
  finding that the suit was within limitation, is unassailable. Thereby, a F
  preliminary decree for redemption was granted giving appropriate time to
  the mortgagor to deposit the amount in the Court by decree dated April 29,
  1979. Thus this appeal by special leave.

     Pending the appeal, the appellant No. l died in July, 1984 and the
 appellant No. 5 died in the year 1987. It is also reported that respondent No. G
 l died in the year 1983 and application for substitution was pending.
 Substitution is allowed.

     Admittedly, no steps have been taken to bring the legal representatives
 of appellant Nos. l and 5 on record. By operation of Order XXII, Rule 4
 read with Rule 11 of Civil Procedure Code, ·when one of two or more             H
    498                     SUPREME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A   defendants died and the right to sue does not survive against the surviving
    defendant or defendants alone, or a sole defendant or sole surviving
    defendant dies and the right to sue survives, the Court, 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. Rule 11
    postulates the applicability of this Order to appeals. As far as may be the
B   word 'plaintiff should be held to include an appellant, the word
    'defendant' a respondent, and the word 'suit' an appeal. Thus at the
    appellate stage also the legal representatives of the deceased respective
    appellants and the respondents should be substituted as the L.Rs. of the
    respective appellants/ respondents. Article 120 of the Third division of the
    Schedule to the Limitation Act, 1963 provides 90 days from the date of
c   death as the period of limitation to have the Legal Representatives of the
    plaintiff appellant, ~efendant-respondent, as the case may be, to be brought
    on record. After the expiry of 90 days, the appeal stands abated unless the
    appeal survives against the surviving appellants. Within 60 days after the
    expiry of 90 days, under Art. 121, the abatement needs to be set aside.
    Since, admittedly, no applications had been made to bring on record the
D   legal representatives of the deceased appellant No. l and 5 from the
    respective dates, before the expiry of 90 days, their appeal stood abated.
    The question is whether the appeal of other appellants also abates: If the
    joint and inseverable decree of redemption granted in favour of
    respondents, which was questioned in the appeal. When that decree of
    redemption against appellants No. l and 5 had come to stand because of
E   abatement of their appeal, that decree of redemption against appellants 2 to
    4 alone cannot be set aside, for in that event decree of redemption made
    against appellants I and 5 questioned in the appeal would stand while the
    decree against appellants 2 to 4 alone calls to be set aside. Since the decree
    for redemption being joint and inseverable, the appeal cannot be continued.
    In this view of the matter, the entire appeal stands abated. The appeal is
F
    accordingly dismissed. No costs.

    A.G.                                                       Appeal dismissed.