SC: ORDER XLI RULE 4 CPC DOESN'T PREVENT ABATEMENT OF JOINT APPEAL IF DECEASED PARTY’S LEGAL HEIRS AREN’T SUBSTITUTED:

On July 18, the Supreme Court clarified that a remedy under Order XLI Rule 4 of the Civil Procedure Code (CPC), which allows one party to appeal on behalf of others when the decree is based on common grounds, is not available in the case of joint appeals where one of the appellants dies and their legal representatives are not brought on record. The decision came in a case where the appellants/defendants had filed a joint Second Appeal before the Madhya Pradesh High Court, challenging a common decree passed by the First Appellate Court. During the pendency of the appeal, one of the defendants died, and his legal heirs were not substituted within the prescribed limitation period. Consequently, the High Court dismissed the appeal as abated under Order XXII Rule 3 CPC.

Before the Supreme Court, the appellants contended that the appeal should not be dismissed in its entirety due to the death of one appellant. They relied on the provisions of Order XLI Rule 4 CPC, arguing that since the decree was based on grounds common to all defendants, the surviving appellant could continue the appeal on behalf of the deceased as well.

However, the bench comprising Justices P.S. Narasimha and Manoj Misra rejected this argument. Writing the judgment, Justice Misra held that Order XLI Rule 4 CPC is only applicable when one of the plaintiffs or defendants files an appeal individually and makes the others proforma respondents. In such a situation, if the decree appealed against is based on a ground common to all, the appellate court can pass a decree in favour of all parties, even those who have not appealed. However, once all defendants jointly file an appeal, they forgo the benefit of Rule 4 of Order XLI. Therefore, the surviving appellant in a joint appeal cannot claim relief for the deceased appellant without substituting their legal representatives.

The Court observed that the appeal in question had been filed jointly by two defendants, and as such, the surviving appellant could not use Order XLI Rule 4 CPC to continue the appeal on behalf of the deceased co-appellant. Since the legal heirs were not substituted in time, the Second Appeal abated entirely as per the provisions of Order XXII CPC.

In distinguishing relevant precedents, the Court referred to Rameshwar Prasad & Ors. v. Shambehari Lal Jagannath & Anr., AIR 1963 SC 1901, and found it applicable to the facts of the case. In Rameshwar Prasad, the joint appeal abated in its entirety because of the failure to bring the legal heirs of one of the deceased appellants on record. The Court also considered Mahabir Prasad v. Jage Ram & Ors., (1971) 1 SCC 265, but held it inapplicable since in that case only one of the multiple decree-holders had appealed, while the others were merely proforma respondents, an arrangement not present in the current case.

Summarising the legal position, the Court held that Order XLI Rule 4 CPC operates at the stage of filing the appeal and is intended to benefit one of the plaintiffs or defendants who chooses to appeal individually on grounds common with others. However, once an appeal is filed jointly by all aggrieved parties, the rule becomes inapplicable. On the other hand, Order XXII CPC governs proceedings during the pendency of a case, including appeals. If a party dies during this period, their legal representatives must be brought on record, failing which the appeal abates. There is no conflict between the two provisions, as they operate at different stages and deal with distinct situations.

Thus, the Court concluded that in the absence of substitution of the deceased appellant’s legal heirs, the Second Appeal had rightly abated and could not be revived using the provisions of Order XLI Rule 4 CPC.