SC: Court can’t be called upon to make 2 inconsistent decrees about the same subject matter.

The Hon’ble Supreme Court, on 28th November, 2018, in the matter of Sunkara Lakshminarasamma (D) by LRs. v. Sagi Subba Raju & Others etc. observed that Order 22 Rule 4 of CPC does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole, if the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. However, the court can not be called upon to make two inconsistent decrees about the same subject matter.

The Hon’ble Apex Court, among other things, observed that:

A plea which was not urged before the trial Court cannot be allowed to be raised for the first time before the appellate Courts. (Para 7)

Order 22 Rule 4, CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co­-defendants are separate, as in the case of co-­owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety depends upon general principles. (Para 9)

If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. (Para 9)

The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. (Para 9)

Copy of judgement : Judgement 28-Nov-2018

Tushar Kaushik

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