Code of Civil Procedure, 1908–Order 22, Rules 1, 4 & 9–Abatement of an appeal on non-substitution of a deceased party in part or whole–Governing principles-
1. Whether the entire appeal abates or it abates partially qua the deceased party alone, will depend on the facts of each case and, therefore, no exhaustive statement about the circumstances in which the entire appeal would abate can be made.
2. As a matter of course, Courts will not proceed with an appeal :-
(a) when the success of the appeal may lead to the Court coming to a decision which is in conflict with the decision between the appellant and the deceased-respondent, which had become final with respect to the same subject matter between the appellant and the deceased-respondent;
(b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court, and
(c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it would not be successfully executed.
3. In a case of ‘joint and indivisible decree’ or ‘ joint and inseverable or inseparable decree’ the abatement of appeal in relation to one or more of the appellants(s) or respondent (s) on account of failure to bring on record his or their LRs. in time would prove fatal to the entire appeal because proceeding qua the surviving party or parties may give rise to inconsistent or contradictory decrees.
4. The question as to whether the decree is joint and inseverable, or joint and severable or separable, must be decided, for the purposes of abatement or dismissal of the entire appeal, only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis, the remaining parties would suffer the vice of contradictory or inconsistent decrees.
5. A decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other which means that the two decrees are mutually irreconcilable or totally inconsistent, that is, if laid side by side, the only impression would be that one is in the teeth of the other.
6. Where the plaintiffs or appellants have distinct, separate and independent rights of their own i.e., not inter-dependent upon other, and for the purpose of convenience, or otherwise joined together in single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as a combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree.
7. Existence of joint right as distinguished from tenancy-in-common is not the criterion of a joint or inseverable or inseparable decree–The joint character of the decree will take colour from the nature of the decree challenged.
