ပဏာမဒီကရီကိုအယူခံဝင်ဆဲတွင်၊အမှုသည်တဦးဦးသေဆုံးသွားပြီး၊တရားဝင်ကိုယ်စားလှယ်ကိုအချိန်မီမထည့်သော်လည်း၊အမှုရပ်စဲသွားရန်အကြောင်းရှိ၊မရှိ။

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ပဏာမဒီကရီကိုအယူခံဝင်ဆဲတွင်၊အမှုသည်တဦးဦးသေဆုံးသွားပြီး၊တရားဝင်ကိုယ်စားလှယ်ကိုအချိန်မီမထည့်သော်လည်း၊အမှုရပ်စဲသွားရန်အကြောင်းရှိ၊မရှိ။

—————————-

ပဏာမဒီကရီချမှတ်ပြီးမှအမှုသည်သေဆုံးခြင်းကြောင့်အမှုရပ်စဲခြင်းမရှိဟု၊စာရေးသူကသောင်းပြောင်းထွေလာဥပဒေပြဿနာစာအုပ်တွင်ဆွေးနွေးပြီးနောက်၊မြန်မာနိုင်ငံ၌စီရင်ထုံးများအစီစီအရီရီပေါ်ပေါက်လာခြင်းကြောင့်၊ဆိုင်ရာဥပဒေဖြစ်ထွန်းမှုကိုဖြစ်စေခဲ့ပါသည်။

အမွေစီမံခန့်ခွဲပေးစေလိုမှုပဏာမဒီကရီချမှတ်ပြီးနောက်အမှုသည်တဦးဦးသေဆုံးခြင်းကြောင့်အမှုရပ်စဲသွားခြင်းမရှိဟု A. I. R. 1924 ( P. C. ) 198 ( 4 Pat. 61 )အမှုတွင်ထုံးဖွဲ့ခဲ့ရာမှ၊စစ်ကြိုခေတ်တရားမကျင့်ထုံးဥပဒေကျမ်းများ၌၊အဆိုပါစီရင်ထုံးကိုကိုးကားဖော်ပြခဲ့ကြသည်။

———————————-

**AIR 1924 Privy Council 198

(FROM PATNA)

10th July, 1924.

LORDS SHAW AND PHILLIMORE.

SIR JOHN EDGE AND MR. AMEER ALI.

Lachmi Narayan Marwary and others-Appellants.

                       V.

Balmakund Marwary and another-Respondents.

P. C. A. No. 4 of 1923, from Patna Appeal No. 28 of 1920.

ပရီဗီကောင်စီ၏စီရင်ထုံး၌၊အောက်ပါအတိုင်းမြွက်ဆိုသည်-

[ After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can ( as already stated ) apply to have it enforced. ]

—————————

* A. I. R. 1933 Rangoon 318

DAS AND MYA BU, JJ.

A. T. K. P. L. M. Muthiah Chettyar—Appellant.

                        V.

Tha Zan Hla and others - Respondents.

Civil Misc. Appeal No. 199 of 1933, Decided on 20th June 1933, against order of Dist. Judge, Akyab, D/. 30th June 1932.

Equivalent citation = ILR Rgn Vol XI စာ-၄၄၆

ပဏာမဒီကရီ၊အပြီးသတ်ဒီကရီဟူ၍ဒီကရီနှစ်ရပ်ချမှတ်ရန်အဆင့်ဆင့်ခွဲ၍ဆောင်ရွက်ရသောအမှုများတွင်၊ပဏာမဒီကရီချမှတ်ပြီးနောက်အမှုသည်တဦးဦးကွယ်လွန်သွားစေကာမူရပ်စဲခြင်းမရှိကြောင်းအောက်ပါအတိုင်းထုံးဖွဲ့သည်-

The question to consider in this appeal is whether O. 22, R. 4 applies to a case where a preliminary decree has been passed, and whether, when no application has been made to add the legal representative of a deceased defendant within three months, the suit shall abate as against the deceased defendant. After a decree has been passed there can be no question of any right to sue surviving because the right to sue has already been merged in the decree. I don’t think that O. 22. R. 4 applies where a preliminary decree has been passed and the suit does not abate as against the deceased defendant. In this connection I may refer to the judgment of their Lordships of the Privy Council in the case of Lachmi Narain v. Balmakund ( AIR 1924 PC 198=81 IC 747=51 IA 321=4 Pat 61 ( PC )At. P.66 of the judgment their Lordships observed as follows:

“ After a decree has once been made in a suit, the suit cannot be dismissed unless the decree reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can apply to have it enforced.”

————————————-

1986 BLR 124 ( 127 )

ဥက္ကဌအဖြစ်ဦးကိုကြီး၊အဖွဲ့ဝင်များအဖြစ်ဦးတွမိမှုန်းနှင့်ဦးဘမော်တို့ပါဝင်သောဗဟိုတရားစီရင်ရေးအဖွဲ့ရှေ့တွင်

မြန်မာ့စီးပွါးရေးဘဏ်(ကိုယ်စား)မန်နေဂျာ၊မြန်မာ့စီးပွါးရေးဘဏ်ခွဲ၊ပုသိမ်မြို့

                          နှင့်

မောင်ထွန်းဝင်းပါ(၅)

အမှုမှာတရားမကြီးမှုတွင်ပဏာမဒီကရီချမှတ်ပြီးနောက်အပြီးသတ်ဒီကရီမချမှတ်မီတွင်တရားပြိုင်သေဆုံးသွားသည့်အမှုဖြစ်သည်။

————————

1999 BLR 169 ( 178 )

တရားမအထူးအယူခံမှု

တရားရုံးချုပ်၊တရားသူကြီးချုပ်ဦးအောင်တိုး၊တရားသူကြီးများဖြစ်ကြသောဦးသန်းဦး၊ဦးခင်မောင်လတ်၊ဦးခင်မြင့်နှင့်ဒေါက်တာတင်အောင်အေးတို့ရှေ့တွင်

မမြစန်း နှင့် ဒေါ်မိုးစိန်ပါ-၄

အမှုသည်လည်းအထူးအယူခံမှုအတွင်းအမှုသည်သေဆုံးသည့်ကိစ္စမဟုတ်ပေ။

မူလမှုတွင်ပဏာမဒီကရီချမှတ်ပြီးနောက်တရားပြိုင်တဦးသေဆုံးသွားရာတရားဝင်ကိုယ်စားလှယ်ထည့်သွင်း၍အပြီးသတ်ဒီကရီချမှတ်ခြင်းနှင့်စပ်လျဉ်း၍ပေါ်ပေါက်သည့်ပြဿနာဖြစ်သည်။

အဆိုပါအမှုတွင်ဒေါ်ကောင်းရှိနှင့်မမြစန်းတို့ကတိုင်းတရားရုံးကချမှတ်သည့်ပဏာမဒီကရီကိုမကျေနပ်၍တရားရုံးချုပ်သို့အယူခံဝင်ရောက်ခဲ့သော်လည်းအယူခံမှုအတောအတွင်းအယူခံတရားပြိုင်ဒေါ်ကောင်းရှိကွယ်လွန်သွားသဖြင့်တရားရုံးချုပ်ကအယူခံမှုတခုလုံးရပ်စဲသွားကြောင်းသုံးသပ်ပြီးအယူခံမှုကိုပလပ်ခဲ့ကြောင်းတွေ့ရှိရသည်။

ပဏာမဒီကရီချမှတ်ပြီးနောက်တရားပြိုင်ကွယ်လွန်သွားရာတွင်ကွယ်လွန်သူတရားပြိုင်နှင့်စပ်လျဉ်း၍အမှုရပ်စဲခြင်းမရှိနိုင်ဆိုခြင်းသည်ပဏာမဒီကရီအပြီးသတ်အတည်ဖြစ်သွားပြီးနောက်အပြီးသတ်ဒီကရီချမှတ်ရေးအတွက်ဆောင်ရွက်ရသည့်အဆင့်အတွင်းတရားပြိုင်သေဆုံးသည့်ကိစ္စကိုရည်ညွှန်းခြင်းဖြစ်သည်။

——————————

အထက်ဖော်ပြပါစုံညီခုံရုံး၊ပရီဗီကောင်စီတို့၏ထုံးဖွဲ့ချက်များသည်ပဏာမဒီကရီအပေါ်အယူခံဝင်သောအမှုများတွင်ချမှတ်ထားခြင်းမဟုတ်။

ပဏာမဒီကရီအပြီးသတ်အတည်ဖြစ်သွားပြီးနောက်တွင်အမှုသည်သေဆုံးသွားရာမှအမှု၏နောက်တဆင့်(အပြီးသတ်ဒီကရီချမှတ်ရေးအတွက်ဆောင်ရွက်ရသောအဆင့်)အတွင်းတွင်အမှုသည်သေဆုံးသည့်ကိစ္စအပေါ်ဆုံးဖြတ်ထားခြင်းဖြစ်သည်။

ပဏာမဒီကရီကိုအယူခံဝင်သောအမှုတွင်၊ပဏာမဒီကရီသည်ပင်လျှင်တည်မည်၊မတည်မည်မသေချာသေးပေ။

တနည်းအားဖြင့်ပဏာမဒီကရီမှန်၊မမှန်ခိုင်လုံခြင်းရှိ၊မရှိ၊စောဒကတက်သောအယူခံမှုတွင်၊အမှုသည်သေပါလျက်တရားဝင်ကိုယ်စားလှယ်မထည့်လျှင်အမှုရပ်စဲမည်ဖြစ်ကြောင်း၊ A. I. R. 1961. Raj. 72 နှင့် A. I. R. 1962 Pat. 285 ( F. B. )အမှုများတွင်ပြဆိုထားသည်။

စီရင်ထုံးသည်ဖြစ်ရပ်ချင်းကွဲလွဲသောအမှုအတွက်အဖြေမဟုတ်ကြောင်း[ 1954 BLR ( H C ) 306 ]အမှုပါထုံးဖွဲ့ချက်ကိုအစဉ်အမြဲသတိချပ်ရန်ဖြစ်သည်။

ပဏာမဒီကရီချမှတ်ပြီးနောက်အမှုရပ်စဲခြင်းမရှိနိုင်ဟုတထစ်ချမှတ်ယူရန်မဟုတ်။

ပဏာမဒီကရီချမှတ်ပြီးနောက်အပြီးသတ်ဒီကရီမချမှတ်မီတရားပြိုင်သေဆုံးပြီးတရားဝင်ကိုယ်စားလှယ်မထည့်လျှင်အပြီးသတ်ဒီကရီချမှတ်နိုင်မှုကိုထိခိုက်နိုင်သည်။

သို့ဖြစ်ရာတရားပြိုင်သေပါလျှင်တရားဝင်ကိုယ်စားလှယ်မထည့်ဘဲ၎င်းအပေါ်

အပြီးသတ်ဒီကရီချမှတ်လျှင်၊ထိုတရားပြိုင်နှင့်စပ်လျဉ်းသောဒီကရီသည်

ပျက်ပြယ်[ nullity ]သည်။စက္ကူစုတ်ဖြစ်သည်။

ဒီကရီကိုတရားပြိုင်၏တရားဝင်ကိုယ်စားလှယ်အပေါ်အတည်မပြုနိုင်။[ 9 Ran 480 ( F B ) ]ကိုကြည့်ပါ။

သို့သော်သေသူတရားလိုကိုအနိုင်ပေးသောဒီကရီသည်စက္ကူစုတ်မဟုတ်။[ A. I. R. 1954 Cal. 205 ]စီရင်ထုံးကိုကြည့်ပါ။

———————————

Padmaram And Ors. 

           vs 

Surja And Ors. 

on 17 December, 1959

Equivalent citations: AlR 1961 RAJ 72

JUDGMENT

I.N. Modi, J.စီရင်ထုံးနှင့်

Baijnath Ram And Ors. 

              vs 

Mt. Tunkowati Kuer And Ors. 

on 15 February, 1962

Equivalent citations: AIR 1962 PAT 285

Author: V. Ramaswami

Bench: V. Ramaswami

JUDGMENT

Kanhaiya Singh, J.စီရင်ထုံးနှစ်ရပ်မှာ၊စာဖတ်သူဥပဒေပညာရှင်များဖတ်ရှုလေ့လာနိုင်ရန်အဆိုပါစီရင်ထုံးများ၏အရေးပါသောမြွက်ဆိုချက်၊သုံးသပ်ချက်များကိုအင်တာနက်မှရှာဖွေဖော်ပြလိုက်ပါသည်။

—————————

Padmaram And Ors. 

           vs 

Surja And Ors. 

on 17 December, 1959

Equivalent citations: AlR 1961 RAJ 72

JUDGMENT

I.N. Modi, J.

စီရင်ထုံးတွင်တရားသူကြီး I.N. Modi, J.ကစီရင်ချက်အပိုဒ်၁မှ၄အထိအမှုအကြောင်းအရာဖြင့်အစချီသည်။

စီရင်ချက်အပိုဒ်၅၌၊အောက်ပါအတိုင်းပြဆိုသည်-

5. The question to consider in these circumstances is whether this constitutes a sufficient reason within the meaning of Order 22, Rule 9 C. P. C. for setting aside the abatement. For, the law is indeed well established that if the right to sue does not survive to the remaining plaintiffs or appellants alone but to them and to the legal representatives of the deceased party, then an application must be made to bring the legal representatives of the deceased party on the record within the time prescribed by law, and where no such application is made the suit or appeal, as the case may be, automatically abates so far as that deceased party is concerned and no specific order as to the abatement of the suit or appeal is as such necessary.

There is hardly any doubt that the right to sue in the present case did not survive only to the defendants who remained on the record after the death of Padmaram, inasmuch as the rights of Padmaram and other defendants were joint and indivisible and there was no question of any division, inter se, between them so far as the present litigation was concerned. The appeal, therefore, undoubtedly abated qua Padmaram deceased, and the further question which arises is whether this abatement should be set aside. Rule 9(2) of Order XXII C. P. C. provides for the setting aside of the abatement where it is proved that the applicant was prevented by any sufficient cause from continuing the suit or the appeal.

The only reason adduced in the present case on behalf of the defendants is that the legal representatives of the deceased Padmaram had been brought on the record of the trial court during the course of the proceedings for the final decree at the instance of the respondents themselves, and therefore, the legal representatives of the deceased Padmaram were advised by their legal adviser at Hanumangarh that it was not necessary for them to make any application for being substituted in place of the deceased Padmaram, and, therefore, they had not made the application earlier and decided to make it later when learned counsel in charge of their appeal in Jodhpur later impressed upon them the desirability of making an application in this Court also.

This, in my opinion, does not constitute any sufficient reason for the defendants' failure to make the application for the substitution of the legal representatives of the deceased Padmaram at the proper time. I am unable to accept that because the legal representatives of the deceased Padmaram had been substituted in, his place in the trial court, this was enough for the purposes of the present appeal also.

There is authority for the view that where there are two independent cross-appeals pending in the some court and one appeal has been filed by the plaintiff and the other by the defendant and where the appeal by the defendant appellant abates, he having not brought on record the legal representatives of the deceased respondent in time, the defendant appellant cannot claim the benefit of the fact that the legal representatives of the deceased plaintiff respondent in the appeal filed by him had been brought on the record within the time allowed by law, on the fallacious assumption that because the plaintiff's legal representatives were added in the appeal filed on his behalf that would automatically ensure for the benefit of the defendant appellant also for the purposes of his appeal. See Shambhu Nath v. Mt. Ralli, ILR 1919 Lah. 318 and Saralaya v. Laxmi Hengsu, AIR 1931 Mad 277. The case in hand is a far worse one. Here we are concerned with two proceedings not in the same court but in two different courts. The suit wherein the legal representatives of the deceased defendant Padmaram were brought was pending in the trial court for the purpose of a final decree and had been instituted by Nanak. The appeal was pending in this Court and had been brought by the defendants Padmaram and others and the two proceedings cannot possibly be allowed to be confused with each other, and, therefore, the bringing in of the legal representatives of the deceased Padmaram in the suit cannot enure for the benefit of the defendants so far as the present appeal is concerned. I hold accordingly.

တရားသူကြီး I.N. Modi, J.ကစီရင်ချက်အပိုဒ်၇နှင့်၈၌အောက်ပါအတိုင်းသုံးသပ်သည်-

7. The result must inevitably be that the appeal, so far as the defendant Padmaram is concerned, abated, as soon as the statutory period of 90 days to bring in his legal representatives of record expired without their being so brought, and that abatement does not deserve to be set aside.

7a. The further question which is however both interesting and intricate is whether the abatement of the appeal, in so far as Padmaram is concerned, should be confined to him in the circumstances, or it results in the total abatement of the appeal. On tile side of the respondents it is strenuously urged that the decree having become final against the deceased Padmaram and his legal representatives and the interests of Padmaram and the other defendants being joint and indivisible, the abatement of the appeal qua Padmaram must inevitably result in the total abatement of the appeal so far as the other defendants appellants are concerned, because, assuming that this Count were to allow the appeal of the remaining defendants, two inconsistent and contradictory decrees would come into existence, the one against Padmaram and his legal representatives having become final as passed by the trial court, and another decree which should be a varying one so far as the remaining defendants would be concerned.

With equal strenuousness, it was contended on the side of the defendants appellants that the abatement in this case should be limited to the case of the deceased Padmaram only, and that, that notwithstanding, the appeal of the remaining defendants could and should be proceeded with unaffected thereby. It is further submitted in this connection that it was open to each of these defendants to have filed their appeals separately without impleading the rest of the defendants as parties thereto, and that that being so, if one of the defendants died and his appeal abated, it would be scarcely just and proper to hold that the appeals of the other defendants should also abate.

Developing this argument, it is further urged that where the decree appealed from proceeds on grounds common to all the plaintiffs or defendants, the law is that any one of the plaintiffs or the defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be. Strong reliance is placed in support of this contention on Rule 4 of Order 41 C. P. C.

8. This at once brings me to the question of the proper interpretation of Order 41, Rule 4 C. P. C. and Order 22, Rule 3 read with Rule 11 thereof, in relation to each other. I am indebted to learned counsel on both sides for the thoroughness and ability with which they supported their respective cases by relying on numerous authorities of the various High Courts which unfortunately show that there is a considerable divergence of judicial opinion between the various High Courts on this question and occasionally one finds divergence of opinion on this question within one and the same High Court also.

စီရင်ချက်အပိုဒ်၉နှင့်၁၀၌အောက်ပါအတိုင်းသုံးသပ်သည်-

9. I am of opinion that no useful purpose can be served by discussing each one of these cases in detail, and I would, therefore, not undertake this stupendous task, but would instead endeavour to address myself to the controversy before me more or less on first principles.

10. Now what is the principle behind the rules relating to abatement of suits and appeals and the setting aside thereof? I think it can be premised without any fear of contradiction that, broadly speaking, the principle is two-fold. The first is that the Court has no jurisdiction to pass a decree for or against a dead man unless the law has by a special provision provided otherwise. (See Rule 6 of Order 22, for instance). The second is that the legal representatives of a party who is dead, and whose presence may be essential for a proper decree to be passed, must be substituted for him so that the possibility of two contradictory decrees in the same proceeding be avoided.

စီရင်ချက်အပိုဒ်-၁၅၌၊အမိန့်၄၁၊နည်း၄နှင့်ပတ်သက်၍အောက်ပါအတိုင်းဝေဖန်သုံးသပ်သည်-

15. This brings me to the question where the appeal is by several plaintiffs or defendants on a ground common to all of them and one of them dies and his legal representatives have not been impleaded within time, does the appeal abate only with respect to the appellant whose legal representatives have not been brought on record or it abates as a whole? Order 41, Rule 4 C. P. C immediately arises for consideration in this connection. This rule reads as follows:

"Rule 4. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."

The plain effect of this provision is that where the decree appealed from is founded on a ground common to all the plaintiffs or all the defendants, it is open to any one of the plaintiffs or the defendants by himself to appeal from the whole decree, and it is not necessary for all of them to join in the appeal and when such an appeal has been filed by one of the plaintiffs or the defendants, as the case may be, thereupon the appellate court would have power to reverse or vary the decree in favour of all the plaintiffs or all the defendants even though they may not have appealed.

It seems to me that in such a case, an appeal by one is virtually treated as an appeal on behalf of all, although they may not have joined in the appeal. This rule appears to be based primarily on the consideration that if there are more plaintiffs or defendants than one in a suit and they are aggrieved or affected by a decree passed for or against them, such a decree being based on a ground common to all of them, then it should be enough if one of such parties files the appeal from the whole decree, the reason being that some of the persons whether on the side of the plaintiffs or defendants as the case may be may not be willing to appeal at all.

But on that account alone, the party wishing to appeal need not be deterred from doing so. And it is further provided that on such an appeal having been filed it should be open to the appellate court in its discretion to reverse or vary the decree in favour of all the plaintiffs or all the defendants, as the case may be, irrespective of the consideration that the other plaintiffs or defendants have not appealed..

စီရင်ချက်အပိုဒ်၁၇၌၊အမိန့်၄၁နှင့်အမိန့်၂၂တို့၏ဆက်စပ်မှုကိုအောက်ပါအတိုင်းပြဆိုသည်-

17. The second question which arises in connection with the interpretation of Order 41, Rule 4 is whether this rule also applies where an appeal has been filed by all or some of the plaintiffs or the defendants and one or some of them have died during the pendency of the appeal and their legal representatives have not been brought on the record within the time allowed by law, so that in such a case it may not be necessary at all to comply with the provisions of Order 22 and the appeal may still be proceeded with, the ground being that the appeal has been filed from a decree which was founded on grounds common to the deceased party and those who were with him and, therefore, the absence of the legal representatives of the deceased appellant or appellants becomes immaterial.

In other words, the question is whether the provision contained in Rule 4 of Order 41 can legitimately govern the provisions contained in Order 22 relating to the abatement of suits and appeals on account of the death of one of the parties therein. The answer to this question is not free from difficulties. It may be said on the one hand that if in an appeal from a decree which proceeds on a ground common to all the plaintiffs or all the defendants, the law of procedure provides that it is open to one of the plaintiffs or one of the defendants by himself to file an appeal, and thereupon the appellate court will be within its bounds to reverse or vary the decree in favour of all the plaintiffs or all the defendants as the case may be, no rule of principle is violated if one of such parties having appealed subsequently dies and his legal representatives are not somehow brought on record within the time permitted by law and consequently an abatement of the appeal with respect to him has occurred; but, that notwithstanding, the appeal can be proceeded with, and it would still be possible for the appellate court to reverse or vary the decree in favour of all the plaintiffs or all the defendants as the case may be.

Putting the matter in another way, the propounders of this view would have it said that the position is, as it, the party who died had not appealed at all, and even then the appeal would have been competent and a proper decree could have been passed in the case in favour of all the appellants including such party who may not have appealed. This argument has a degree of plausibility about it and has found acceptance in a number of cases. Nevertheless, on a balance of all the considerations, I am far from satisfied that it is sound.

It seems to me important to bear in mind in this connection that Rule 4 of Order 41 is really and enabling one and all it does, after everything is said and done, is to vest a discretion in the court in cases falling within the scope of that provision to reverse or vary the decree in favour of all the plaintiffs or all the defendants, as the case may be. But the court is not bound to do so. Fully recognising, therefore, that the rule is a permissive one and it invests the court with a discretion to reverse or modify a decree in favour of all the appellants (including those who may have not appealed) where the circumstances of the case so warrant, it cannot be overlooked that all judicial discretions have got to be exercised on certain well-recognised principles and not on the mere fancy or caprice of the deciding court.

It is a serious question whether an enabling provision like this can be allowed to govern and indeed outweigh the specific provisions of Order 22 which deal with the consequences of the death of a party or one of the parties to a suit or appeal during the pendency thereof. And it is further well to bear in mind in this connection, as I have discussed above, that these rules are mandatory in character judging by their very language and the effect of the failure to comply with the requirements thereof laid down in Order 22 itself.

It is very important to remember further that Order 41, Rule 4 by its very language is properly applicable to that class of cases where all the plaintiffs or all the defendants, as the case may be, who are appellants, are alive at the time the appellate court passes its decree, though the appeal may have been actually filed by only one or more of them. Indeed it seems to me that if it is held to be applicable in the case of an appellant who may have appealed and died during the pendency of an appeal, it is bound to render nugatory the provisions of Order 22 in a large class of cases falling within Order 41, Rule 4 which in my opinion could have hardly been intended by the Legislature.

And I would add with all respect that if that was its intention, one should have expected it to say that in plain words and not left it to be inferred. It seems to me in these circumstances that to hold that Order 41, Rule 4 can be resorted to even in cases where the application of Order 22 by reason of the death of one of the parties to the Suit or the appeal is attracted would be to subordinate the positive and specific provisions of Order 22 which embody in themselves a complete Code on the subject dealt with by it to an enabling provision like the one contained in Rule 4 of Order 41.

Again the correct approach where two provisions of a statute would appear to conflict with each other, is on the well-settled principles of the interpretation of statutes to harmonise them and not to subordinate the one to the other, if that can be done. It was held by their Lordships of the Privy Council in Md. Sher Khan v. Swami Dayal, AIR 1922 PG 17 that one provision of a statute ought not to be used to defeat another provision, unless it is impossible to effect a reconciliation between them. The same view has been approved by our own Supreme Court in Raj Krushna v. Binod Kanungo, AIR 1954 SC 202, where their Lordships have laid down that it is the duty of the courts to construe provisions which appear to conflict so that they harmonise whenever it is possible to do so.

စီရင်ချက်အပိုဒ်-၁၉၌အောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

19. Summing up the position at which I have arrived from the discussion made above, I would say that the two sets of provisions contained in Order 22 and Order 41, Rule 4 C. P. C. having regard to the objects behind the rules relating to abatement of suits and appeals and the necessity for setting them aside and the rules contained in Order 22 being mandatory in character and again having regard to the consideration that the rule contained in Order 41, Rule 4 is an enabling general provision empowering the appellate court in its discretion to vary or reverse a decree under appeal which was based on grounds common to all the plaintiffs or all the defendants and wherein all of them may not have appealed should be interpreted in such a way that they receive their due effect and force within their respective ambit without the one impinging upon the other, and the proper method to do so is to hold that where one of the appellants has died even where the judgment under appeal is founded on a ground common to all the appellants, the application of Order 22 cannot be brushed aside in subordination, as it were, to the provision contained in Rule 4, and that the latter provision would not be attracted into application in such a case as it should really be limited to those cases where all the appellants are alive at the date of the decision by the appellate court and not where one or more of them have died and their legal representatives have not been brought on record in accordance with the requirements of Order 22. I hold accordingly.

စီရင်ချက်အပိုဒ်-၂၉၌အောက်ပါအတိုင်းဆုံးဖြတ်သည်-

29. For the reasons mentioned above, this appeal abates as a whole and is dismissed accordingly. The respondents will be entitled to one set of costs from the appellants.

———————————————-

Baijnath Ram And Ors. 

              vs 

Mt. Tunkowati Kuer And Ors. 

on 15 February, 1962

Equivalent citations: AIR 1962 PAT 285

Author: V. Ramaswami

Bench: V. Ramaswami

JUDGMENT

Kanhaiya Singh, J.

တရားသူကြီးချုပ် Ramaswami, C. J.အခြားတရားသူကြီးများဖြစ်သော Choudhary, J.နှင့် Kanhaiya Singh, J.တို့ကစုံညီခုံရုံးဖြင့်စီရင်သောအမှုဖြစ်သည်။

အမှုတွင်တရားသူကြီး Kanhaiya Singh, J.ကစီရင်ချက်အပိုဒ်-၁၌အောက်ပါအတိုင်းအစချီသည်-

1. This case has been referred to a Full Bench because of the important question of law involved in it.

တရားမကျင့်ထုံးဥပဒေအမိန့်၂၂၊နည်းဥပဒေ၁မှ၁၀အထိပြဌာန်းချက်များကိုရည်ညွှန်း၍စီရင်ချက်အပိုဒ်-၃မှ၁၂အထိအောက်ပါအတိုင်းပြဆိုသည်-

3. The question mooted in this appeal is whether the application for substitution of the heirs of the deceased appellant is governed by Rule 10 or Rule 3 of Order 22 of the Code. Learned counsel for the appellants maintained that Rule 10 applied, whereas Mr. S. N. Datta representing the respondents urged that Rule 3 governed it. If Rule 10 applies, there is no question of abatement at all; on the other hand, the appeal will abate respecting the interest of appellant No. 2, if Rule 3 is held to be applicable. 

Learned counsel for the appellants relief on a Bench decision of this Court "in Lal Behari Gorain v. Ishwar Gorain, AIR J956 Pat 376. It fully supports his contention. There is, however, a contrary Bench decision of this Court in Jamuna Rai v. Chandradip Rai, AIR 1961 Pat 178. In the latter case, the decision in the case of Lal Behari Gorain, AIR 1956 Pat 376 was not followed. There is an apparent conflict between these two decisions of this Court, and, in fact, it is for the resolution of this conflict and for an authoritative opinion, on the applicability of Rule 3 or Rule 10 in the light of the facts of this case that the present Full Bench has been constituted.

4. Before addressing ourselves to the questions raised, it would be necessary to notice some of the relevant provisions of Order 22 of the Code. This Order deals with the creation, assignment or devolution of interest of a party to the suit by his death, his marriage, his insolvency, or otherwise, during the pendency of the suit. I may state here that by virtue of Rule 11 the provisions of this Order apply to appeals also. Therefore, wherever the word plaintiff or defendant is mentioned, the word 'plaintiff shall be deemed to include an appellant and the word 'defendant' a respondent, and the word 'suit' an appeal. Rule 1 of this Order provides that the death of a plaintiff or defendant shall not cause the suit to abate if thy right to sue survives. Where the right to sue does not survive, there is an end of the suit. If the plaintiff or the defendant dies and if the right to sue survives, then the procedure laid down in Rule 2, 3 or 4, as the case may be, has to be followed for an effective trial of the suit.

5. Rule 2 lays down the procedure to be followed in cases where one of several plaintiffs or defendants dies and the right to sue survives to the remaining plaintiffs or defendants. It provides that where there are more plaintiffs or defendants than one and any of them dies, and where the right to 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 plaintiff, or against the surviving defendant or defendants.

In the cases falling under Rule 2, no application for substitution by any party is necessary; it is the duty of the Court to make necessary entry in the record on receipt of the information of the death of the plaintiff or the defendant. The Court will simply record that the heirs and legal representatives of the deceased plaintiff or defendant are on the record and the representation is complete. There is no abatement of the suit or appeal falling under Rule 2. The essential condition for the application of this rule is that the right to sue fully vests in the surviving plaintiffs or is available against the surviving defendants. If the rights to sue is not fully represented by the surviving plaintiff or defendant without bringing on record some persons, then the procedure laid down in rules 3 and 4 will have to be followed.

6. Rule 3 lays down the procedure in case of death of one of several plaintiffs or of sole plaintiff, and similarly Rue 4 deals with the case of death of one of several defendants or of sole defendant. These rules taken together provide that where one of two or more plaintiffs or defendants dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone or a sole plaintiff or a sole defendant or sole surviving plaintiff 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 plaintiff or deceased defendant, as the case may be, to be made a party and shall proceed with the suit. They further enact that where within the time limited by law an application is made for substitution of the legal representatives of the deceased plaintiff or defendant, as the case may be, the suit shall abate so far as the deceased plaintiff is concerned or as against the deceased defendant.

7. Rule 5 empowers the Court to determine as to who is the legal representative of a deceased plaintiff or a deceased defendant.

8. Rule 6 provides as follows:-"Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of cither party between the conclusion of the hearing and the pronouncing: of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place." This is an important provision and affords, in my opinion, a clue to the interpretation of the entire Order 22. Under this rule, there is no abatement by reason of the death of the defendant or the plaintiff after the conclusion of the hearing and before the pronouncement of the judgment and a judgment pronounced within that period shall have the same force and effect as if it had been pronounced before the death, took place. This rule comes into play only when the hearing had been concluded before the death.

9. Rule 7 lays down that the marriage of a female plaintiff or defendant shall not cause the suit to abate.

10. Rule 8 provides for cases where the plaintiff (not defendant) becomes insolvent during the pendency of a suit. It enacts that the insolvency of a plaintiff (not the insolvency of a defendant) in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within Such time as the Court may direct.

11. Rule 9 deals with the effect of abatement or dismissal of a suit.

12. Then comes another important provision in Rule 10 which lays down as follows:

"10 (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against  the person to or upon whom such interest has come or devolved.

စီရင်ချက်အပိုဒ်-၁၃၌၊ Lachhmi Narain V. Balmakund, AIR 1924 PC 198.ပရီဗီကောင်စီ၏စီရင်ထုံးကိုရည်ညွှန်း၍အောက်ပါအတိုင်းဝေဖန်သုံးသပ်သည်-

13. The gist and effect of the said rules, as are apparent on the plain language thereof, may be stated thus : The provisions of Order 22 come into play when an assignment, creation or devolution of any interest, by reason of death or transfer inter vivos such as sale, mortgage, lease or gift occurs during the pendency of a suit. The word 'suit' has not been defined in the Code. Used in a comprehensive sense, it is generally taken, to include appeal, which is only a continuation of suit In Order 22, however, it has been given a restricted meaning. It means only such proceedings as are antecedent to the passing of a decree. It does not apply when the assignment, creation or devolution, by death or otherwise occurs after the passing of the decree. This is sufficiently manifest from the provisions of Rule 6 which further limits the meaning of 'suit' to the conclusion of the hearing. Under this rule, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncement of the judgment, and a judgment pronounced within that period by virtue of the fiction laid down therein shall have the fame force and effect as if it had been pronounced before the death took place.

If there is no abatement in such a case, a fortiori, there is no abatement of suit if the death occurs after the decree has been passed. It is not to say that Order 22 does not apply to appeals. By virtue of Rule 11 of the said Order, the provisions thereof apply to appeals also, but not on the theory that an appeal is simply a continuation of suit. Therefore, for application of Rules 3 and 4 or, for the matter of that, other provisions a suit and an appeal have to be considered separately. It is now well-settled that there is no abatement under Rule 2, and Rules 3 and 4 have no application if the death of the plaintiff or the defendant, as the case may be, occurred after the decree. 

The question of, abatement of a suit arises only when the death takes place prior to the conclusion or the hearing of the suit. The reason is furnished by the pronouncement of their Lordships of the Judicial Committee in Lachhmi Narain V. Balmakund, AIR 1924 PC 198.

The principles laid down by their Lordships are;

"After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside; after a decree any party can apply to have it enforced".

In that case, a preliminary decree by consent was passed by the High Court on appeal in a suit for partition. The suit was thereupon remitted to the Subordinate Judge in order that the necessary step for effecting the partition of the undivided property, pursuant so the directions of the High Court, might be taken. The Subordinate Judge, accordingly fixed a date for hearing the parties and gave them notice. But when the day came, neither the plaintiff nor his pleader appeared. The defendants or some of them were represented but took no steps. Eventually, the Subordinate Judge dismissed the suit for want of further prosecution. The order of the Subordinate Judge was set aside by the High Court, and the order of the High Court was upheld by their Lordships of the Judicial Committee on the aforesaid observations.

That was a case in which a preliminary decree for partition was passed and it was held that the suit could not be dismissed for a subsequent default of the plaintiff. The question of substitution arises when the right to sue survives, but the right of action is determined by the decree, and, therefore, Rules 3 and 4 are not strictly applicable. It is thus settled beyond controversy that death after judgment does not cause abatement of the suit. It is worthy of note that Rule 6 makes no distinction between the preliminary decree and the final decree. Having regard to the provisions of this rule, it seems futile to make a distinction between a suit where final decree has been passed and a suit wherein there is only a preliminary decree. The legal position in either case is the same. Rule 6 applies to the judgment based on arguments which have been concluded before the death, and it is plain that such judgment may be the judgment founding cither a preliminary decree or a final decree.

There is now a unanimity of judicial opinion that in a suit requiring a preliminary decree and a final decree, there can be no abatement of the suit on account of the death of a party after preliminary decree and before final decree. Where, therefore one of two or more plaintiffs or defendants dies after the conclusion of the hearing and before, delivery of judgment in a suit, it is not at all necessary to substitute the heirs and legal representatives of the deceased plaintiff or defendant. If no appeal is preferred, the decree becomes final, and the execution of the decree may be taken out by or against the legal representative of the deceased party. If appeal is preferred, it is again not necessary to file application for substitution, as required by Rules 3 and 4 before presentation of the appeal. All that the appellant has to do is to mention the name of the legal representative in place of the deceased plaintiff or defendant, as the case may be, in the memorandum of appeal itself and continue the appeal with the leave of the Court.

The same considerations apply to an appeal. When once an appeal has been preferred, the question, of right to appeal surviving becomes necessary, and in case of death during appeal, the provisions of Rule 2, 3 or 4 or, for the matter of that, other provisions of Order 22 apply, according to the circumstances of the case. Thus, in a case falling under Rule 6, there is no abatement of the appeal at all. These principles govern an appeal either from the final decree or from the preliminary decree.

There is, therefore, no abatement of a suit if the death occurs between the passing of the decree and the presentation of the appeal whether the decree is preliminary or final. In case of a suit requiring a preliminary decree and a final decree, there is however, one additional consideration. The parties may be satisfied with the preliminary decree and may not appeal against that decree. Nevertheless, the preliminary decree will have to be made final according to the directions contained therein. If, therefore, an application is made for making the preliminary decree final, then it will be necessary to implead the heirs and legal representatives of the party who died after the preliminary decree and before the application for final decree was made, or as is well known, the decree against a deceased person is a nullity.

It is evident, therefore, that if the death occurs between the pronouncement of a judgment and the presentation of an appeal, no matter whether the decree is preliminary or final, Rule 10, and not Rules 3 and 4, governs the matter. After appeal is preferred and one of the appellants or respondents dies during appeal, and the representation is incomplete in the absence of his heirs, then Rule 3 or Rule 4, as the case may be, will apply, and the appeal will abate, either partially or wholly, as the case may be, if the legal representatives are not brought on the record within the period allowed by law, in the same way as a suit will abate on identical grounds and in application of these principles, there is no distinction between an appeal from a preliminary decree and an appeal from a final decree. These problems do not arise where the devolution of interest of a party to the suit or appeal takes place not by reason of death, but by operation of law or transfer inter vivos during the pendency of the suit or appeal. In that case, the suit or appeal may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved.

If the person, on whom the interest of the plaintiff or respondent had so devolved, does not obtain the leave of the Court under Rule 10 for the continuance of the suit or appeal by or against him, the suit or appeal may be continued by the original party, but he would still be bound by the result of the litigation, whether for of against him. When the' devolution takes place by reason of death, for the application of Rule 3, Rule 4 or Rule 10 it becomes essential to determine whether the death took place before or after judgment or before appeal was filed, or after the preliminary decree or final decree. It is, however, noteworthy that if the matter falls under Rules 3 and 4, application of Rule 10 is ousted and resort cannot be had to it to circumvent the mandatory provisions of Rules 3 and 4.

စီရင်ချက်အပိုဒ်-၁၄၌အောက်ပါအတိုင်းသုံးသပ်သည်-

14. Turning to the question canvassed before us, if the said principles are kept in view, its solution presents no difficulty at all. To recall the material fads, the present appeal has been preferred by the defendants against the final decree passed in the suit for mesne profits, which arose out of a final decree for partition. During the pendency of the appeal, appellant No. 2 died. On the principles above-stated, there is no doubt whatsoever that Rule 3 governs the matter, and the appeal abated so tar as the deceased appellant No. 2 is concerned. Rule 10 does not come into operation when death takes place during the pendency of the appeal. A contrary view has, however, been taken, by a Bench of this Court in AIR 1956 Pat 376, which no doubt supports the appellants' contention. A preliminary decree was passed in a partition suit, and an appeal was filed in this Court against the preliminary decree. During the pendency of the appeal one of the appellants died. An application for substitution of his legal representatives was filed after the period of limitation prescribed therefor had run out.

Learned counsel for the appellant contended that Rule 10 applied. Their Lordships gave effect to that contention. They took the view that where a preliminary decree has been made the rights between the parties have been determined and the question of the right to sue surviving does not arise. They purported to base their decision upon two previous rulings of this Court--Shanti Devi v.Khodai Prasad Singh, AIR 1942 Pat 340 and Raghunandan Sahu v. Badri Pandey, AIR 1945 Pat 380.

With the greatest deference to their Lordships, the provisions of Order 22, as will appear from above, do not warrant such a view and the said two decisions do not support it. For the application of Rule 3 or 4 it is wholly immaterial whether the decree is preliminary or final. A preliminary decree, if not set aside, is final for all practical purposes. The final decree is merely a part of the procedure necessary to enforce the rights conferred on the plaintiffs by the preliminary decree. It simply works out in detail the principles laid down and determined therein, in short, a final decree is a decree intended to perfect the preliminary decree.

There is, therefore, no legal foundation for the view that in an appeal from a preliminary decree the question of the right to sue surviving does not arise. When an appeal has been preferred, on the death of one of the appellants or respondents, the question of the right to sue surviving does arise, whether the appeal is from preliminary decree or final decree. When once an appeal is filed, the entire matter passes into the seisin of the appellate Court Right to appeal or right to oppose it, is a vested right, which, in consequence of death of a deceased appellant or respondent devolves on his legal representative who if not already on the record, will have to he substituted and accordingly, for the determination as to whether one or the other rule applies, the question of the right to sue surviving assumes importance.

စီရင်ချက်အပိုဒ်-၁၅၌အောက်ပါအတိုင်းမြွက်ဆိုသည်-

If the substitution of the legal representatives of a deceased party at the time of passing the final decree is imperative to save it from the vice of nullity, it is all the more necessary in the appeal from the preliminary decree, because the preliminary decree which is the foundation of final decree is itself being impugned.

စီရင်ချက်အပိုဒ်၁၆၌အောက်ပါအတိုင်းပြဆိုသည်-

It will be observed that this case also is not an authority for the proposition that Rule 10 applies in case of death of a party during appeal from a preliminary decree. When death occurred after the passing of the preliminary decree and an application is made for a final decree Rule 10 will obviously apply, as at the stage of final decree there was no survival of any right to sue. The above criticisms apply to this case also with equal force.

စီရင်ချက်အပိုဒ်-၂၂၌၊အောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

22. I do not propose to examine the decisions of other High Courts, because there is no divergence of judicial opinion. All the High Courts are agreed that even an appeal from preliminary decree will abate if the heirs of the deceased appellant or respondent are not substituted within the time limited by law.

စီရင်ချက်အပိုဒ်-၂၃၊၂၄၊၂၅၌၊တရားသူကြီးချုပ် Ramaswami, C. J. နှင့် တရားသူကြီး Choudhary, J. တို့က၊ တရားသူကြီး Kanhaiya Singh, J.၏ဆုံးဖြတ်ချက်နှင့်အမြင်ကိုသဘောတူညီကြောင်းဖော်ပြ၍စီရင်ချက်ကိုအောက်ပါအတိုင်းအဆုံးသတ်သည်-

23. The correct view appears to be that where there is an appeal from a decree, preliminary or final, and during the pendency of the appeal one of the appellants or respondents dies and the, right to sue does not survive to the remaining appellants or against the remaining respondents, then Rule 3 or 4, as the case may be, applied and not Rule 10, and the appeal will abate if the legal representatives are not brought on the record, within the time limited by law as, provided in Sub-rule (2) of Rule 3 and Sub-rule (3) of Rule 4. Therefore, the case of Lal Behari Gorain, AIR 1956 Pat 376 was not correctly decided and must be overruled. It must be held that the present appeal abated as against the deceased appellant No. 2. The case will be referred back to the Division Bench with that opinion.

Ramaswami, C. J.

24. I agree.

Choudhary, J.

25. I agree.

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ဥပဒေများကိုလေ့လာရာ၌အခက်အခဲဖြစ်နေရခြင်းမှာစီရင်ထုံးများပြန့်ကျဲနေရခြင်းကြောင့်ဖြစ်ရာရှုဒေါင့်စေ့စေ့လေ့လာခွင့်မရ၍အားနည်းမှုအနည်းနှင့်အများပေါ်ပေါက်လာခြင်းဖြစ်ပါသည်။

စီရင်ထုံးအများစုကိုအင်္ဂလိပ်ဘာသာဖြင့်ရေးသားထားသည်။

အိန္ဒိယနိုင်ငံဥပဒေကျမ်းတို့ကိုလည်းအင်္ဂလိပ်ဘာသာဖြင့်ရေးသည့်အလျောက်အင်္ဂလိပ်ဘာသာကို လောက်လောက်လားလားသင်ယူဖို့လိုသည်။

စီရင်ထုံးများကိုလေ့လာရာမှပညာ၏အရသာကိုခံစားရသောအခါရှေ့ကိုဆက်ဖတ်သွားရန်နှောင့်နှေးစရာအကြောင်းမရှိနိုင်တော့။

အမှန်စင်စစ်အားထုတ်မှုသည်သာအဓိကဖြစ်သည်။

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