AIR 1953 ALLAHABAD 565

Allahabad High Court

Hon'ble Judge(s): Sapru, Basudeva Mukhrhee, Chaturvedi , JJJ

Civil P.C. (5 of 1908) , O.22 R.3, O.22 R.11— Appeals by defendants on common ground - Appeal by one of them abating - Effect on other appeals. If, in a suit a plaintiff makes a claim against a number of defendants on common grounds and all the defendants also contest the suit on common grounds and the suit is decided in favour of the plaintiff against all the defendants, an appeal filed by all the defendants can be heard in favour of the remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been brought on the record so that his appeal has abated, only if the rights and interests of the surviving defendants were not joint and indivisible with those of the deceased defendant, and in the event of the success of the appeal, it does not lead to two inconsistent and contradictory decrees. While the appeal of the remaining defendants can be heard, the decision in it will not enure to the benefit of the legal representatives of the deceased defendant-appellant.(Para 25) Scope and applicability of O.22, Rr.3 and 11 and O.41, R.4, Discussed. 25 All 27, AIR 1930 All 211(2), AIR 1944 All 240, AIR 1950 All 1, Considered; AIR 1923 All 211, 43 Cal WN 1088, Distinguished. AIR 1941 Oudh 219 (FB), AIR 1949 Nag 91, Relied on.(Para 10 ....