Code of Civil Procedure, 1908–Order 22 & Order 41, Rule 4–Interplay between the provisions qua abatement of an appeal–Governing principles-
(1) Rule 4 of Order 41 applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances–A plaintiff or a defendand can take advantage of the provisions but he may not–Therefore, once an appeal is filed by all the plaintiffs or defendants aggrieved by the decree, the provisions of Order 41, Rule 4 become unavailable.
(2) Rule 4 of Order 41 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others–The Court in such an appeal may reverse or vary the decree in favour of all the parties who are having the same interest as the appellant, even though they have not appealed against the decree–This is so, because it is not the law that when a decree is passed on a ground common to all the parties, the appeal is to be filed by all the parties or not at all.
(3) Order 22 applies without exception to all proceedings covered by it–It operates during the pendency of a proceeding including an appeal and not at its institution–Therefore, if an appellant dies during the pendency of the appeal, his legal representatives must be brought on record within the period of limitation–If that is not done, the appeal by the deceased-appellant abates.
(4) Where an appeal is filed by any one or some of the plaintiffs, or defendants, aggrieved by the decree, by impleading other such plaintiff(s) or defendant(s) as proforma-respondent(s), in the event of death of such proforma-respondent, the benefit of the provisons of Order 41 Rule 4 would be available to continue the appeal regardless of substitution of LRs. of such proforma-respondent.
(5) There is no inconsistency between the provisions of Order 22 and those of Rule 4 of Order 41, CPC–They operate at different stages and provide for different contingencies–There is nothing common in their provisions which makes the provisions of one interfere in any way with those of the other.
