Arun Khosla vs Central Bank Of India And Ors.

Ranjit Singh, J

Through its order dated 16th August, 2013, the Tribunal below has disposed off 10 interim applications (I.As.). The appellant is aggrieved against the order passed in I.A. No. 1067/2012 and has accordingly filed this appeal only to challenge that part of the order. I.A. No. 1067/2012 was filed by the respondent No. 4 for recall/review of the order dated 22nd August, 2012 whereby substitution application (I.A. No. 10/2011) filed by the Bank more than 5 years after the death of defendant Nos. 2 and 6 had been allowed. The main ground of attack by the said respondent to seek review/recall of the order dated 22nd August, 2012 passed by the Tribunal below was that there was a delay of 2000 days which had not been explained by the respondent Bank and, therefore, the suit would stand abated. As per the appellant, the application seeking condonation of delay was pending when the application for review was filed and had not been decided by the Tribunal below while allowing substitution application. He would contend that the liability of defendant Nos. 3 to 5 being guarantors/mortgagors was joint and several, the whole suit would abate in view of the law laid down in the case of Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85, which, according to the appellant is valid till date and holds the field. Reference is also made to the judgment passed by the Hon'ble Supreme Court in the case of Sri Chand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427 in support of the proposition canvassed by the appellant. This issue arises in the facts which may now be noticed in brief. Respondent, Central Bank of India, had entered into an agreement with Bharat Finance Corporation (P) Ltd. for advance for money. As per the appellant, this money was exclusively for the business of supplying trucks and buses and/or other vehicles on hire purchase system. Over the years, the said contract was innovated with enhanced limits of lending. The appellant as well as respondent Nos. 3 and 4 claim to have been discharged of their liability as guarantors in their earlier capacity as per law. The appellant would allege that respondent Bank conspired with deceased Durga Das, who was Director of respondent No. 2 Company, in order to contravene the specific terms of agreement dated 16th January, 1996 by diversion of loan to one Union Motors of which Durga Das was Managing Partner.

It is then alleged that respondent No. 2 Company defaulted in its obligation qua the respondent Bank, when respondent Bank instituted O.A. No. 9.7/2004 against respondent No. 2 Company and its five Directors in their capacity as guarantors to the facilities advanced. The alleged guarantors, namely, Durga Das and Shankar Banerjee had died on 28th December, 2005 and 27th July, 2006 respectively. Still, the Bank did not take any step to substitute their legal heirs.

The appellant as well as respondent Nos. 3 and 4 filed their written statements and affidavits by way of evidence, raising a preliminary objection with regard to the maintainability of the said O.A. qua them. The respondent Bank then filed the I.A. No. 10/2011 under Order XXII, Rule 4 of C.P.C. sometime around January 2011 to bring the legal heirs of deceased Durga Das and Shankar Banerjee on record. The Bank also filed an application for condonation of delay in filing the said substitution application being I.A. No. 15/2011. The appellant would complain that despite request, the copies of the applications were neither given in advance nor at the time of hearing on 22nd August, 2012 either to the appellant/respondents or their Counsel.

The Tribunal passed the order dated 22nd August, 2012 allowing I.A. No. 10/2011. As per the appellant, this was done in a mechanical manner without the application of mind and without making any reference to I.A. No. 15/2011 where a prayer for condoning the delay in filing the application to substitute the L.Rs. of deceased was made. The grievance of the appellant is that the delay of almost 2000 days in filing the substitution application was not even considered and the substitution was allowed. To make the matter worse, the Tribunal is alleged to have culled out these names from thin air and the L.Rs. impleaded are said to have no relation with the deceased defendants, but the amended memo of parties was still taken on record.

Mr. Y.P. Das, respondent No. 4, filed an application (I.A. No. 1067/2012) seeking review of the order dated 22nd August, 2012. His plea was that the non-substitution of deceased defendants by their L.Rs. within the prescribed limitation period, the suit will stand abated automatically and that the belated substitution application could not be considered without first being satisfied that the delay needs to be condoned as per the mandate of Section 3 of the Limitation Act. The Tribunal below has dismissed the said application on 16th August, 2013. As per the appellant, the reasons given in support of the order dismissing the application are not tenable in law and this order, therefore, is liable to quashed. The appellant has, accordingly, filed the present appeal against the order dated 16th August, 2013 so far as it relates to I.A. No. 1067/2012. Incidentally, no appeal is filed by respondent No. 4 who had filed I.A. No. 1067/2012.

Undoubtedly, the present case seems to be in some sort of mess. Two of the defendants, namely, Durga Das (defendant No. 2) and Shankar Banerjee (defendant No. 6) have died in 2005 and 2006 respectively. The Bank did not take any step for substituting their L.Rs. within the period of limitation and moved I.A. in this regard nearly after expiry of five years. Though the move was belated, it suffered from yet another infirmity. The names of the L.Rs., Ms. Manju Dass and Manav Dass, given as widow and son of Durga Das were ultimately found to be wrong. It was pointed out that Manju Dass and Manav Dass were wife and son of respondent No. 4 Mr. Y.P. Das who was still alive. The Tribunal below apparently also ignored another aspect and failed to pass any order on I.A. No. 15/2011, which was filed seeking condonation of delay in bringing L.Rs. of respondent Nos. 2 and 6 on record. The Tribunal has passed the order on the applications seeking substitution of L.Rs. without disposing of the said application for condonation of delay. Since application for substitution of L.Rs. was filed with delay, on the basis as noted above, an application I.A. No. 1067/2012 was filed for review of the said order, when the Tribunal has passed the impugned order giving direction for deletion of the names of the L.Rs. of defendant No. 2 (Durga Das) from the array of parties with further direction to the respondents in the Original Application to disclose the name of the L.Rs. of deceased defendant No. 2 (Durga Das). While passing this order, I.A. No. 15/2011 filed by the Bank for condoning the delay in bringing the L.Rs. of the deceased has been disposed of as infructuous in view of the order passed in I.A. No. 1067/2012. Seeing all this, notice in the appeal was issued and that part of the impugned order passed on I.A. No. 1067/2012 was stayed.

The Bank has put in appearance and has filed reply. The Bank has termed the present appeal to be a misconceived one. The stand of the Bank is that there is no infirmity in the order passed by the Presiding Officer while disposing of the I.A. No. 1067/2012. The grievance of the Bank is that the defendants did not at any point of time disclose the names of L.Rs. of the deceased defendant No. 2, Durga Das. Finding that the names earlier given by the Bank were wrong, the Tribunal had rightly directed the deletion of their names with further direction to respondent Nos. 2, 3 and 4 to disclose the name of the L.Rs. of deceased defendant Durga Das. The Bank statedly has taken steps to bring on record the L.Rs. of deceased Durga Das (defendant No. 2) by filing another application which is pending.

Mr. Arun Khosla, the appellant, has argued the appeal by appearing in person and has made submissions on the basis of various judgments to plead that due to failure on the part of the Bank to substitute the L.Rs. of deceased defendant No. 2 the whole suit would stand abated as the liability of the borrower and guarantors were joint and several. He would first refer to the judgment of the Privy Council in the case of Maqbul Ahmad (supra). The Counsel would make reference to that part of the observation when the Court has considered if there was some sort of judicial discretion which would enable the Court to relieve the appellants from the operation of the Limitation Act in a case of hardship. In this regard, the Counsel has relied upon the following observations made:

"...It is enough to say that there is no authority to support the proposition contention for. In Their Lordships opinion it is impossible to hold that in a matter which is governed by Act, an Act which in some limited respects give the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that Section 3 of the Act is pre-emptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings. Their Lordships only desire to add one other world and it is this: that the decision which has been referred to in the case of 1921 Bom. 379 (1), cannot, in their view, be supported, having regard to the provisions of Sections 3, 4 and 14 of the Limitation Act. As Counsel for the appellants referred to Section 5 of the Act and suggested that there was some discretion under that section which could be exercised by the Court in the case, it is right to stay that in Their Lordships' view that section has no application at all to the circumstances of this case...."

In support of the plea that the entire suit would abate, the Counsel has referred to the case of State of Punjab v. Nathu Ram, AIR 1962 SC 89. This was a case where certain land belonging to two brothers, L and N jointly was acquired for military purposes and on their refusal to accept the compensation offered by the Collector, the State Government referred the matter for inquiry to an arbitrator under Rule 10 of the Punjab Land Acquisition (Defence of India) Rules, 1948. The arbitrator passed a joint award granting a higher compensation and also certain sum on account of income-tax. Government appealed against the award in the High Court. During the pendency of appeal L died and as his legal representatives were not brought on record and the appeal abated against him. The question was whether the appeal would also abate as against N. The Court has held that appeal against N alone could not proceed. The relevant observation of the Hon'ble Supreme Court in this regard are as under:

"(8) The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the Appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with other joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary corollary, that the Appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plan. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken."

Reference is then made to the case of Sri Chand (supra). The Court in this case was dealing with a situation where when one of the appellants had died during the pendency of appeal before Supreme Court. The abatement of the appeal so far as the deceased appellant was concerned became final. The effect thereof would be that the entire appeal would abate. The facts in this case were that during the pendency of suit by A against B three persons stood sureties for the satisfaction of the decree to be passed in the suit by executing an unregistered bond. A sought to execute the decree obtained in the suit against the sureties by enforcing the surety bond as in the meantime B had been would up on A's petition. The sureties objected to the execution against them on the grounds, inter alia that the surety bond being unregistered was not enforceable and that the decree holder A having committed an act by which the remedies of the sureties against the judgment debtor B had been impaired, the sureties stood discharged. These objections were rejected by the executing Court and the order was upheld by the High Court in appeal. The sureties appealed to the Supreme Court by special leave but before the record was transmitted to the Supreme Court one of the appellants sureties died without his heirs being brought on record as appellants within time prescribed under Order 16 Rule 12 of Supreme Court Rules. An application for condonation of delay was rejected by the High Court and was affirmed by the Supreme Court with the result that the appeal abated so far the deceased appellant surety was concerned. The question was whether the appeal had abated in its entirety or whether the Supreme Court could proceed with the hearing of the appeal so far as the remaining sureties were concerned and reverse the order of the High Court under Order 41 Rule 4 of C.P.C. The Supreme Court held that the appeal had abated in its entirety. It is observed by the Apex Court that it has on more than one occasions considered whether in circumstances similar to these, an appeal should stand abated in its entirety. The Court has made reference to the case of Nathu Ram (supra) where it has explained that the test applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents. The Court has noted the observation made in Nathu Ram's case (supra). As already noted above, in Nathu Ram case (supra) the Court has held that when the decree in favour of respondent is a joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated.

In Sri Chand's case the Court has further noticed that the principle of the judgment in the case of Nathu Ram's case (supra) was approved in Rameshwar Prasad v. Shambehari Lal Jagannath, AIR 1963 SC 1901 and in another unreported judgment in Kishan Singh v. Nidhan Singh, C.A. No. 563 of 1962, dated 14th December, 1964 (SC). The Court has then gone on to notice that the three tests suggested Raghubar Dayal, J. in Nathu Ram's case are not to be the cumulative tests. It is held that even if one of these is satisfied, the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirely. The observations of the Court in the case of Sri Chand are as under:

"(9) Liability of the sureties is under law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other; vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court had made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree-holder the properties belonging to the sureties individually may be sold separately. But that is because the properties are separately owned and not because the liability arises under distinct transactions."

Reference is also made to the case of Om Sarup Nand Lal v. Gur Narain, AIR 1965 Punj. 367. The Court in this case has held that the question whether an appeal has abated on account of death of a necessary party whose legal representatives have not been brought on record within the prescribed period and where abatement has also not been sought to be set aside within the period prescribed has to be answered by reference to the provisions of Order 22 of C.P.C. Rules 3 and 4 of this Order are termed mandatory and Court has held that it is extremely doubtful if the Court can ignore the automatic abatement merely because an objection to this effect has not been raised. If no application is made, within the time to bring on record the legal representative of the deceased respondent, appeal abates automatically though objection to the abatement may not have been raised at proper time. The Court has held that if the legal representatives of a deceased respondent are not brought on the record within the prescribed time, the appeal abates only qua the deceased. As per the Court, the Code does not provide for the abatement of the appeal against the other respondents who are on the record. The question of effect of partial abatement on the appeal against the other respondents has to be determined by general principles. If the case is of such a nature that, the absence of the legal representatives of the deceased from the record prevents the Court from hearing the appeal as against the others, then the appeal cannot proceed at all, which is sometimes described to result in total abatement. It is held that this question must depend from it every nature upon the facts of each case, and it is scarcely possible to formulate a rule of general application, which can in all cases, serve as a rigid formula for the Court to determine when it can or cannot proceed to dispose of an appeal as against the existing parties on the record. The difficulty facing the Court generally arises when the decree appealed against is joint. The test, as per the Court, in such contingency, broadly put, is that, if the decree appealed from, against the surviving respondents, in case of success of the appeal, becomes ineffective, in the sense that it cannot be successfully executed, or if by allowing the appeal two contradictory decrees in respect of the same subject-matter would come into being on the rolls of the Court in the same litigation, then the Court will not proceed with the appeal. This test covers cases when the joint decree is indivisible. In such a case the decree appealed from becomes final as against the deceased respondents with the result that as against him the Appellate Court cannot modify the decree either directly or indirectly. In this regard, the Court had relied on the Nathu Ram's case (supra). Reference to the following observation in the case of Om Sarup may be of a help:

"Suffice it to say, that the difficulty facing the Court generally arises when the decree appealed against is joint. The test in such a contingency broadly put, is that, if the decree appealed from, against the surviving respondents, in case of success of the appeal, becomes ineffective, in the sense that it cannot be successfully executed, or if by allowing the appeal two contradictory decrees in respect of the same subject-matter would come into being on the rolls of the Court in the same litigation, then the Court will not proceed with the appeal. It is a matter of common sense that the Court should not be called upon to make two inconsistent decrees about the same property, and making of conflicting decrees should be avoided. This test covers cases when the joint decree is indivisible. In such a case the decree appealed from becomes final as against the deceased respondent with the result that as against him the Appellate Court cannot modify the decree either directly or indirectly. We have, therefore, to consider if the decree appealed from in the present case is indivisible."

In the case of Jagar v. Mst. Natho, AIR 1960 Punj. 207, it was pointed out that on the death of the respondent in its incumbent on the appellant to cause legal representatives of the deceased to be made a party and if no application for this purpose is made within the time limited by law, the appeal must abate as against the deceased. The period of limitation of 90 days is allowed for making such application. When the appeal has abated even then the appellant is given another chance of approaching the Court for an order to set aside the abatement and if he succeeds in proving that he was prevented by any sufficient, cause from continuing the appeal, the Court normally sets aside the abatement, on such terms as to costs or otherwise as it thinks fit. For this purpose, Article 171 of the Act of 1908 fixes 60 days and it can thus be said that knowledge of the death of the deceased party may not figure in these two Articles with the result that prima facie the date of the knowledge of the death would not be a relevant consideration in determining the question of limitation in the two applications. Rule 9(3) of Order 22 of C.P.C. of course provides for applicability of Section 5 of the Limitation Act to applications filed under Rule 9(2) of Order 22 of C.P.C. But, then in older to invoke the assistance of Section 5, it is well recognized that each individual day's delay after the expiry of the period of limitation has to be satisfactorily explained and the explanation has to cover the whole of the period of delay.

The Counsel has referred to the case of Union of India v. Ram Charan (deceased) through his Legal Representatives, AIR 1964 SC 215, to urge that the Court has no inherent power to add legal representatives. The Supreme Court in the case has held that the Court is not to invoke its inherent powers under Section 151 of C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time.

The Court in this case has also gone on to consider the term 'sufficient cause'. It is noted that the provisions of the Code are with a view to advance the cause of justice. As held in this case, the Court in considering whether the appellant has established sufficient cause for not applying for setting aside of abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain facts established, both because the question does not relate to merits of dispute between the parties and because if the abatement is set aside the merits of the dispute can be determined while, if the abatement is not set aside the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. The Court has to scrutinize the evidence and see if cause is justified in applying late and not to accept whatever is alleged by the appellant to explain away the default, appellant truly may not be under duty to make regular inquiries from time-to-time about the health or existence of respondent, but still it cannot mean that the mere Act of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement. Rule 9 of Order 22 of C.P.C. requires plaintiff to prove that he was prevented by any sufficient cause for continuing the suit. Mere allegation about his not coming to know of the death of opposite party is not sufficient. He has to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by LR of the deceased who have secured a valuable right on abatement of the suit. At the first instance, it is for the appellant to allege why he did not know of the death earlier or why he could not know about it despite best efforts, if he had made any efforts. The correctness of the reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring LR on record. It has been observed that mere allegation of belated knowledge of death of opposite party is not sufficient but reasons leading to not knowing of death within reasonable time must be stated. Of course, it is also observed that the limitation has to start from the date of death and not from the date of knowledge on the part of the party. The Court has further observed that application for bringing the legal representatives on record would be necessary in terms of Order 22 Rule 3 but who has to present such an application is not provided. Ordinarily, it is the plaintiff who moves to present such application as by abatement of suit the defendants stand to gain.

Rules 3 and 4 of Order 22 of C.P.C. lay down the procedure to be followed in case of death of one of several plaintiffs or defendants and right to sue survives or of the death of one of several plaintiffs or of sole plaintiff in similar circumstances. The procedure requires an application for making of the legal representatives of the deceased plaintiff or defendant a party. If no such application is made within the time allowed, the suit abates so far as the deceased plaintiff is concerned or against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against surviving defendants depends on other consideration as have been laid down by the Hon'ble Supreme Court in Nathu Ram's case. The Court in the case of Ram Charan's case has also observed that only remedy that the legal representative is to get the abatement of suit set aside by making an application for the purpose within time. It is further observed that the Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. This would mean that the applicant had to allege and establish facts which, in the view of the Court, would be a sufficient reason for not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicant's not continuing the suit by taking necessary steps within the period of limitation.

Ordinarily, the statement of the applicant that he came to know of the death of the other party more than three months after the death will not be sufficient for the Court's holding that the applicant had sufficient cause for not impleading the legal representatives within time. It is observed that if the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the Legislature would have expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months. This is held to be a sufficiently long period and appears to have been fixed by the Legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The Legislature might have expected that ordinarily the interval between two successive hearings of a suit will be such within three months and the absence of any defendant within that period at a certain hearing may be accounted by his Counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party's absence. The Legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under Article 171 for an application to set aside the abatement of the suit, but also made the provisions of Section 5 of the Limitation Act application to such applications. Thus, the plaintiff is allowed sufficient time to make an application to set aside the abatement.

In Rameshwar Prasad v. Shambehari Lal Jagannath (supra), the Hon'ble Supreme Court has observed that an Appellate Court has no power to proceed with the appeal and to reverse and vary a decree in favour of all the plaintiff or defendants under Order 41 Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendant appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22 Rule 3. As per the Court, the discretionary power cannot be exercised to nullify effect of abatement of appeal.

The next case relied upon by the appellant is Mithailal Dalsangar Singh v. Annanbai Devram Kini, V (2003) SLT 546 : AIR 2003 SC 4244. Incidentally, the Counsel for the Bank has also placed reliance on this judgment. The appellant has placed reliance on that part of the observation made by the Hon'ble Supreme Court where it is held that abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. As per the Court, once the suit abates as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. In case of Shahazada Bi v. Halimabi (since dead) by her LRs., V (2004) SLT 189 : 2004 (6) SCALE 373, the Court has held that where suit was for recovery of possession of seven rooms and the plaintiff in the plaint had separately mentioned the rooms in possession of each of the defendants, then in the eventuality of death of one of the defendants during the pendency of the suit, the suit would not abate in its entirety. As held in this case, Order 22 Rule 4 of C.P.C. 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. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interest of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. It is further observed in this case that as per the statute the appeal abates only qua the deceased respondent but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles, if the case is of such a nature that the absence of the legal representative 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. The Court has also noted that the test which is often adopted in such a case 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 decree, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties. As held in this case, the distinction must be made between the cases in which there is a specification of shares or interests, and those in which there is no specification of interests. In cases where there is a specification of share or interest, the appeal cannot abate as a whole and the appeal abates only in respect of the interest of the deceased respondents and not as whole.

The question as to whether the decree is joint, and in-severable or joint and severable has to be decided, for the purposes of abatement with reference to the fact as to whether the decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable enforcement and that, enforcement of one would negate the enforcement of the other.

Then reference is made to A.A. Haja Muniuddian v. Indian Railways, AIR 1993 SC 361. The Court in this case has considered the applicability of the provisions of C.P.C. to the Railway Tribunal. The appellant has made reference to this judgment inter alia to urge that the provisions of C.P.C. would apply as has been held in this case that those would apply to determine the Railway claims transferred to Railway Tribunal from the Civil Court. Similar are the provisions of the RDDBFI Act. The Hon'ble Supreme Court in this case has observed that nowhere in the Act is there any provision which runs counter to or inconsistent with the provisions of Order 33 of the Code although the Act and the Rules of the Railway Tribunal do not specifically provide for an application of Order 33 of the Code. The Court has observed that there is nothing in the Act or Rules which precludes the Tribunal from following that procedure if the ends of justice so require. The Court has gone on to observe that if the view taken by the Tribunal is accepted as laying down the correct law, the result would be that a claimant who has a genuine claim for compensation under the provisions of the Act would be denied access to the Claims Tribunal if he is an indigent person and does not have the means to pay the fee required on the claim application. Proceeding further, the Court has observed that before the establishment of the Claims Tribunal he would have been able to file the suit invoking Order 33 of the Code as an indigent person, but now that a Special Claims Tribunal has been established under the Act, can it be said that indigent persons who do not have the means to pay the fee required on the claim application are altogether debarred from seeking compensation from the Railway Administration. It is observed that access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee. Such a view would leave indigent persons without a remedy. The Court, accordingly, held that the provisions of the Act and the Rules must be broadly interpreted to ensure access to justice. Referring to Section 18(1) of the said Act, the Court has observed that the said section only says that the Claims Tribunal 'shall not be bound' by the procedure laid down by the Code but does not go so far as to say that it 'shall be precluded' from invoking the provisions laid down by the Code even if the same is not inconsistent with the Act and the Rules. It has also been observed that since the Claims Tribunal is empowered to regulate its own procedure, there is nothing in the Act and the Rules which precludes the invocation of Order 33 of the Code. As held by the Court, a view which advances the cause of justice must be preferred to the one which defeats it. The appellant would thus contend that the provisions of C.P.C. and thus Order 22 Rule 4 cannot be excluded on the ground that these provisions have not been made applicable. The Hon'ble Supreme Court, as per the appellant, was dealing with such a situation when the above noted observations were made.

Reference is then made to the case of United Bank of India v. Golam Hossain Haider, AIR 1997 Cal. 359. The Court in this case has held that on the death of a party proceeded against during the pendency of recovery proceeding for recovery of the loan, the Tribunal should adhere to relevant provisions of Order 22 of C.P.C. The Court has observed as under in this regard:

"2. .....There is no other efficacious alternative via-media by way of a procedural law which can regulate the proceeding in the case of death, marriage and insolvency of the parties other than the application of Order 22 of the Code of Civil Procedure. Unless the same is allowed to be invoked, the Debts Recovery Tribunal will be in a region of quandary to arrive at an adverse inference to the conduct of a party litigant for not taking steps either for condonation of delay or for non-presentation of the substitution in time. If Code of Civil Procedure does not apply and then in absence of the application of the same. Limitation Act is allowed to be applied as the only pari materia under the relevant provisions of the Limitation Act. Longer time has been prescribed which may not fit in with the object and the purpose of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The adaptation of the procedure should be in a manner so that objects of the Act may not be made a casualty at the alter of erratic procedure and speedy justice may not be thwarted. We too consider the statute by invoking the doctrine of mischief rule in preference to that of doctrine of golden rule with regard to the construction of statute. It becomes very difficult to specify all the eventualities and to the procedural remedial steps to be taken to get over such eventuality except by application of Order 22 of the Code of Civil Procedure which is a well-thought device adopted and tested for centuries by the legal draftsman whose wisdom is supposed to be greater than that of the modern harbinger of natural justice. This Court is loaded with every day several applications on a complaint that erratic procedures are being adopted and so long the impression was the debtor were complaining parties and now that Bank or Financial Institutions have also fallen in the line. Therefore, the mischief likely to be visited is not one sided one. It is bound to affect all the parties in a proceeding."

The plea raised before the Court was that it cannot abdicate its authority of superintendence over the Tribunal and permit the adjudicating Forum turn into breeding ground either of anarchy or of free play of whims under the level of the epithet of omnibus nomenclature of natural justice which is supposed to have a definite or precise connotation. Referring to the provisions of Section 19(1) of RDDBFI Act, 1993 coupled with Clause (2), it was urged that guiding pari materia appears to be the application of principles of natural justice as laid down under Section 22. It is observed that adjudicating Forum must dispense justice in accordance with procedure as procedures are hand-made of justice. Celebrated observations of Aristotle are referred to note that rule of law is preferable to that of rule of man however high pedestal in which such person may be placed Anybody placed in the pedestal of justice is subservient, to rule of law and in the name of natural justice one cannot be allowed to embark into a journey of demonstration of whims and anarchy. The entire process is required to be modulated and guided by procedure in civil adjudication in whatsoever nature whether it is a money claim or not, as those in judicial domain are groomed up in tradition for application of the basic pari materia, namely, the Evidence Act, Limitation Act and the Code of Civil Procedure. There has been no exclusion made of applicability of two basic pari materia namely Evidence Act and Limitation Act. The problem has arisen in view of the provisions incorporated in Section 22(1) of the RDDBFI Act where basic pari materia has been forecast as adherence to the principle of natural justice, but in the same breath it has been pointed out that it shall not be bound by the procedure laid down by the Code of Civil Procedure. The Tribunals have been given powers to regulate their own procedure including the places at which they shall have their sittings. It is noted that the provision of Section 22(2) gives a glimpse of truncated projection of the applicability of the provisions of the Code of Civil Procedure. The Civil Procedure Code and its applicability have not been excluded by specific terms and it is only indicated that it shall not be bound by the procedure laid down by the Code of Civil Procedure. The Court has thus held that:

"Therefore, henceforward that Debts Recovery Tribunal is required to deal with the questions which result as off shoot from death, marriage and insolvency of a party before it. It should adhere to particular provisions of Order 22 of the Code of Civil Procedure. It is made clear that, it is not a warrant for which the Debts Recovery Tribunal shall get any encouragement that entire Civil Procedure is to be applied for as a whole. It is only for the limited purpose for taking care of the eventualities of the death, insolvency and marriage only. The particular provision of Order 22 should be resorted to and Order 22 also include within its fold that other residuary eventualities like assignment or anything else which is covered by Order 22. This Court makes it clear that non-application of the Code of Civil Procedure does not operate as a bar to apply Order 22 of the Code of Civil Procedure so that the mischief of free play of the whims of the vagaries of the person do not come into play and that may not take a substitute practical implementation of principles of natural justice."

Apparently, the appellant has made reference to the cases of A.A. Haja Muniuddian and Golam Hossain Haldar (supra) to contest the observations made by the Tribunal below on the basis to judgment in the case of Usha Mankotia v. The Benaras State Bank Ltd., II (2003) B.C. 22 (DRAT/DRT) 264. In Usha Manoktia's case, this Tribunal has taken a view that as per existing law, concept of abatement is not applicable to the proceedings before the Debts Recovery Tribunal and if an application is moved by the claimant Bank or Financial Institution for bringing on record L.Rs. of the deceased defendant, the applicant Bank or Financial Institution cannot be told that the claim against this defendant has already abated as no application for substitution of legal representatives was filed within ninety days of death. This Tribunal, at the same time, has also viewed that bringing to L.Rs. of deceased defendant is must unless it is shown that the decree, if any, passed on a claim application of the Bank or Financial Institution can be executed against unrepresented asset of the deceased defendant. This Tribunal has examined the modalities by which the Bank or Financial Institution may bring the legal representatives of deceased defendant on record. The relevant observations are:

"Since the provisions of the Act and rules made thereunder are silent on the subject, the Presiding Officer of the Debts Recovery Tribunals will have to adopt a procedure which may not be prejudicial to either of the parties. In my opinion, as soon as it comes to the notice of the applicant Banks/Financial Institutions that a defendant has died it should take to substitute the deceased defendant by bringing on record his legal representatives within a reasonable time. Likewise, when the factum of death comes to the knowledge of the Presiding Officer of the Debts Recovery Tribunal, he should not proceed with the case on merits and should ask the applicant Bank/Financial Institution to move application for substituting legal representatives of the deceased defendant within a reasonable time. For sufficient grounds the applicant Bank/Financial Institution may request for enlargement of such time if after enlargement of such time the applicant Bank/Financial Institution still fails to move an application for substitution of legal representatives of the deceased defendant, the Presiding Officer of a Debts Recovery Tribunal may order for deletion of the name of the deceased defendant from the array of the parties and consequently no decree can be passed against the assets left by the deceased defendant."

While taking the above noted view, this Tribunal has considered the judgments of the Calcutta High Court and Hon'ble Supreme Court in the cases of United Bank of India v. Golam Hossain Halder (supra) and A.A. Haja Muniuddian v. Indian Railways (supra) besides other judgments which were cited before it. The Tribunal, however, had addressed a poser as to how the suit would abate when the C.P.C. did not apply to the proceedings under the RDDBFI Act, as there is no provisions in the Act relating to abatement. Having examined this case from this angle, this Tribunal has taken a view as already noted above. The appellant would contest this view being not in consonance with the view of Calcutta High Court as well as of the Supreme Court in the cases of United Bank of India v. Golam Hossain Halder (supra) and A.A. Haja Muniuddian v. Indian Railways (supra). Based on these submissions, Counsel for the appellant would contend that the suit in this case abated in entirety and, thus, the impugned order passed by the Tribunal below would call for interference.

The Counsel for the Bank has, on the other hand, opposed the prayer made in the present appeal tooth and nail. The Counsel has also made reference to number of judgments in this regard. The Counsel has justified the order passed by the Tribunal below in I.A. No. 1067 of 2012 being perfectly legal and appropriate. The Counsel points out that the Bank had already filed a fresh I.A. No. 8204 on 24th September, 2013 which is still pending and the said I.A. can be disposed of in accordance with law subject to any orders that may be passed by this Tribunal. As per the Counsel for the Bank, the surviving defendants kept silent on the aspect of providing information to the Court regarding the legal representatives of deceased defendant No. 2. The Counsel has pointed out that the present appellant was not represented when the order dated 22nd August, 2012 was passed. This order was passed by the Tribunal in the presence of Counsel for defendant Nos. 3 and 4 and I.A. No. 10 of 2011 was allowed. As per the Counsel, once the Tribunal below has issued direction to the defendant to disclose the names of the legal heirs while disposing of I.A. No. 1067 of 2012, it had partially reviewed the order dated 22nd August, 2012 and, thus, would submit that there is no infirmity in the said order.

Having made reference to this factual position, the Counsel has advanced his submission with regard to the legal position about the issue of abatement. As already noticed, the Counsel for the appellant has also relied on Mithai Lal Dalsangar Singh's case (supra). In this context, Counsel has made reference to the following part of the observations made by the Hon'ble Supreme Court:

"8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, it allowed, would have the effect of setting aside the abatement though not asked for in so many words is the effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for."

As per the Counsel, the observation of the Hon'ble Supreme Court that a prayer for bringing the L.Rs. on record, if allowed, would have the effect of setting aside the abatement as the said relief is in fact being actually asked and is necessarily implied applies squarely to the facts of the present case. He would, thus, contend that the contention of the Counsel for the appellant that abatement could not be set aside is legally untenable. As per the Counsel, the legal position which can be culled out from the said judgments of the Apex Court in this regard is that period of ninety days from the date of death of a party, the suit remains in a state of suspended animation and then it abates. On a prayer made by the legal representatives of deceased for setting aside abatement and the legal representatives of the deceased on being brought on record, the suit is again rendered good and it gets revived and abatement of the suit would be deemed to be set aside in its entirety even though there may not have been any specific prayer made or no specific order is passed by the Court in this regard.

The Counsel would contest the proposition advanced by the appellant on the basis of law laid down in Shri Chand's case (supra). As per the Counsel, the facts in this case would not support the case of the appellant for the reason that in the said judgment issue was that three of the sureties had appealed from the order of the lower Appellate Court and in that appeal one of the appellants had died when the Hon'ble Supreme Court has held that in the facts of the case that the appeal had abated because the legal heirs of the second appellant has not been brought on record. The Counsel has relied on judgment of Calcutta High Court in the case of United Bank of India v. Modern Stores (India) Ltd., (1990) 69 Comp. Cas. 697 where the Division has observed:

"The learned trial Judge in dismissing the suit has also observed that having brought the suit against all the guarantors and the principal debtors and having allowed the suit against some of the guarantors to be dismissed, the plaintiff has destroyed the rights of co-guarantors or co-sureties from their right of contribution against those discharged sureties, because the claim would be barred by the principles of res judicata and the principles of analogous thereto. Under Section 138 of the Contract Act, it is provided that where there are co-sureties, a release by the creditor of one of the them does not discharge the others, neither does it free the surety so released from his responsibility to the other sureties. Therefore, according to Section 138 of the Contract Act, if a plaintiff has chosen not to proceed against one or other of the sureties but has chosen to proceed against the rest, then the release of one or the other co-sureties by the plaintiff will not free the guarantor so released from his responsibility to the other sureties.

The learned Trial Judge has also relied on a decision of the Supreme Court in Sri Chand v. Jagdish Pershad Kishanchand, AIR 1966 SC 1427. In our view, the learned Trial Judge had not appreciated the ratio of the decision of the Supreme Court in the said case. In that case, the Supreme Court has recognized that the liability of the surety is joint and several and if a guarantor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged nor will release by the creditor of one of them discharge the other. As pointed out by Dr. Banerjee, in out view, rightly, in that case the Supreme Court was concerned with the fact that three of the sureties appealed from the order of the lower Appellate Court and in that appeal one of the appellants had died and the Supreme Court had held that the appeal had abated because the representation of the second appellant had not been brought on record. We accept the interpretation put by Dr. Banerjee that the appeal in that case had abated not because, the release of sureties could not be taken discharge of the others but that the appeal would have affected jointly the rights of the appellants who were three of the sureties. In our view, this decision is not an authority for the proposition that if the suit against one of the co-guarantors is allowed to be dismissed, then the suit against other co-guarantors should also be dismissed on the basis of principles of res judicata as held by the Trial Judge."

The Counsel for the Bank would also contend that the suit in this case would not abate as alleged as the decree, which is likely to be passed against the defendants cannot be considered joint and inseparable decree and has to be construed as joint and several liability. As per the Counsel, the creditor Bank has option under the law to sue the surety without suing the principal borrower. In this regard, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State Bank of India v. Indexport Registered, II (1992) BC 243 (SC) : AIR 1992 SC 1740. The Court has held in this case that the creditor is not-bound to exhaust his remedy against the principal borrower before suing the surety. Observations of the Hon'ble Supreme Court in this regard are as under:

"13. In the present case before us the decree does not postpone the execution. The decree is simultaneous and it is jointly and severally against all the defendants including the guarantors. It is the right of the decree holder to proceed with it in a way he likes. Section 128 of the Indian Contract Act itself provides that the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the Act.

In Pollock and Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at page 728 it is observed thus:

"Co-extensive--Surety's liability is co-extensive with that of the principal debtor.

A surety's liability to pay the debt is not removed by reasons of the creditor's omission to sue the principal debtor. The creditor is not bound to exhaust this remedy against the principal borrower before suing the surety, and a suit may be maintained against the surety though the principal has not been sued."

In Chitty on Contracts 24th Edition Volume 2, at page 1031 para 4831 it is stated as under:

Prima facie the surety may be proceeded against without demand against him, and without first proceeding against the principal debtor.

In Halsbury's Laws of England, Fourth Edition para 159 at page 87 it has been observed that it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this expressly stipulated for.

In Hukamchand Insurance Co. Ltd. v. Bank of Baroda, AIR 1977 Knt. 201, a Division Bench of the High Court of Karnataka had an occasion to consider the question of liability of the surety vis-a-vis the principal debtor. Venkatachaliah, J. (as His Lordship then was) observed (Para 12):

"The question as to the liability of the surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a surety which is co-extensive with that of the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct. The liability of the surety does not also, in all cases arise simultaneously.

It will be noticed that guarantor alone could have been sued, without even suing the principal debtor, so long as the creditor satisfies the Court that the principal debtor is in default."

The Counsel accordingly would contend that composite money decree being both a personal against all the defendants including the guarantor as well as mortgage decree, the decree holder cannot be forced to exhaust his remedy by way of mortgage decree alone and there to proceed against the guarantor. Reference is also made to the case of United Bank of India v. Modern Stores (India) Ltd. (supra). The Court has observed that it is settled law that the discharge of the principal debtor by operation of law does not operate as discharge of the sureties. It is held that if the creditor expressly reserves against persons other than the principal debtor, then the release of the principal debtor either by act or omission on the part of the creditor or by operation of law will not discharge the surety. Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not discharge the surety. The Court in this case has also held that client of an Advocate should not suffer for the laches of the Advocate. The Counsel has also referred to case of Ramdas Sattur v. Rameshchandra Popatlal Shah, VII (2007) SLT 434 : AIR 2007 SC 3018.

I have considered the submissions made before me. A number of issues have been raised by the appellant in this case, which relates to abatement of the OA and also the effect of orders having not made on the application seeking condonation of delay. The crux of the submissions made by the appellant is that the application for bringing on record legal representatives of the deceased respondent though allowed but has been reviewed and, thus, the legal representatives of the deceased respondent are not on record. The effect of this, as per the Counsel, is abatement of the OA not only against the deceased but that the OA would abate in entirety as per the law referred to and relied upon. The appellant would also contest the orders passed by the Tribunal below allowing the I.A. to bring the legal representatives on record as those persons were not actually the legal representatives of deceased defendant which order in any case was passed without considering the application for condonation of delay which was of considerable period. Submissions made by the Counsel for the respondent Bank, however, would bring out that the order passed in the earlier application has rightly been reviewed and that the Bank has now filed a fresh application for bringing on record legal representatives. This application is statedly pending and has to be decided by the Tribunal below. The Counsel would urge that the Tribunal below may be allowed to pass an order on the said application and thereafter the parties can have their remedies, if any, in accordance with law. The Counsel would urge that it would be for the Tribunal below to allow or disallow the said application and it would also be in the discretion of the Tribunal below to condone delay in moving the application. His plea is that this Tribunal should not take away the right to the Tribunal below to decide the said application by passing an order in the present appeal as the Tribunal below is yet to pass an order of substitution of L.R.

The principal borrower in this case is Bharat Finance Corporation (P) Ltd. and the present appellant as well as other respondents are the guarantors only. Two guarantors, namely, Durga Dass (defendant No. 2) and Mr. Shankar Banerjee (defendant No. 6) have died and the issue relates to bringing on record their legal representatives in the O.A. Undoubtedly, the Bank has delayed in moving the application for bringing on record the legal representatives of these defendants. It had also moved an application seeking condonation of delay. The Tribunal below allowed the application for bringing on record the legal representatives, but did not pass any order on the application seeking condonation of delay as apparently this application escaped consideration of the Tribunal. The order may seem to suffer from yet another defect inasmuch as that the Bank had mentioned the names of the legal representatives of defendant No. 2 wrongly as in fact they were not the legal representatives of deceased defendant No. 2. Blame for this is that of the Bank or the respondents who did not point out at the appropriate time but moved application for review later. On this count, Mr. Y.P. Dass defendant No. 4 filed an application for review of this order dated 22nd August, 2012 passed by the Tribunal below whereby the legal representatives of defendant No. 2 were brought on record. Review was sought on the ground that the delay of nearly 2000 days had not been explained and the result of that would be that the suit had already abated once the application for condonation of delay was not decided and was pending. Plea was that the liability of defendant Nos. 3 to 5 was joint and several and in view of the laid law down by the Privy Council, the whole suit would abate.

The Tribunal below relied upon the judgment in the case of Usha Mankotia (supra) passed by this Tribunal that the concept of abatement is not applicable to the Debts Recovery Tribunal for bringing on record the legal representatives surviving debtors. The Tribunal also referred to the judgment in the case of Mithai Lal Dalsangar Singh's case (supra) where the Court has observed that a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. The Tribunal has rather found fault with the defendants inasmuch as they had not disclosed the names of the legal representatives but had blamed the Bank in this regard. The Tribunal below accordingly reviewed the order earlier passed and issued directions to the defendants to disclose the names of the legal representatives of defendant No. 2. In this background that the Bank has now filed a fresh application for bringing on record the LR of defendant No. 2, which is pending.

The legal position regarding abatement as canvassed by the appellant would apply if it is viewed that the provisions of C.P.C. are applicable. The appellant being aware of this difficulty has made laborious endeavour to canvass that the provisions of C.P.C. would regulate the position or at least such provisions are to be followed for substituting the L.R. of the deceased defendants. I have already referred to the observation recorded in the cases of A.A. Haja Muniddian case (supra) and Golam Hossain Haider case (supra). What appears to have weighed with the Court in the case of A.A. Haja Muniddian is the denial to access to justice to an indigent person. The Court has therefore considered if the provisions of Order 33 of C.P.C. can be ignored while deciding the claim under the Railway Claims Tribunal Act. It is held that access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee. It is observed that an interpretation which denies justice must be avoided. Construction advancing the cause of justice must be preferred to one which defeats it. Hon'ble Supreme Court has observed in clear terms that Section 18 of the Railway Claims Tribunal Act, only says that the Claims Tribunal shall not be bound by the procedure laid down in C.P.C., but does not say that it shall be precluded from invoking the same. Section 22(1) of RDDBFI Act is identically worded as in Section 18(1) of the Railway Act. It would thus be safe to hold that the Tribunals under the RDDBFI Act shall not be bound by procedure laid down under C.P.C. It may not be precluded from invoking the provisions under C.P.C. but that cannot mean that the a provisions of C.P.C. have to regulate the procedure of the Tribunals. As per Section 22(1) of RDDBFI Act, the Tribunal can regulate its own procedure. Can it, therefore, be pleaded that the Tribunal ought to follow the procedure given in Order 22 of C.P.C.? Plain answer to this would be that Tribunal is not bound to follow the procedure under Order 22. It may choose to follow the same if it so consider appropriate in a particular case. Even if the guiding principles of Natural Justice are to govern the procedure, it cannot be said that provisions of Order 22 would apply. If a view which advances the cause of justice is to be preferred, then abatement of the 'OA' as advocated on the oasis of Order 22 would rather lead to defeat the cause of justice rather than advancing the same. To me it seems clear that it is not possible to view that the provisions of C.P.C. have to regulate the procedure of the Tribunals, but it would be for the Tribunals to adopt any procedure analogous to the procedure contained in the C.P.C. if it is not in violation of the provisions of the Act and/or is in accordance with the 'Principles of Natural Justice' to advance the cause of justice Tribunals are entitled to regulate their procedures. It may not be possible to hold that the Tribunals are bound to follow the provisions of Order 22 of C.P.C. and that it would regulate the procedure in the case of death etc. It would be open for the Tribunals to follow the procedure in such cases which leads to advancing the cause of justice rather than defeating the same. In this regard, I can seek support from the view expressed by this Tribunal in another case titled Rajendra Dorian Punj v. IFCI Ltd., IV (2008) B.C. 59 (D.R.A.T.), where it is similarly held that C.P.C. does not apply to proceedings before Tribunals and public institutions are not living persons of flesh and blood and cannot be expected to know the death immediately. Application filed on knowing about the death was thus not faulted. It is noticed that RDDBFI Act is a special statute providing mechanism for speedy recovery of debts and to get over the technicalities. The statute has provided for summary procedure and non-applicability of C.P.C.

The legal position which would emerge from the various decisions may be that when the legal representatives of the deceased are not brought on record within the prescribed time, the appeal abates. It however abates only qua the deceased. The Court is thus not prevented of undertaking the appeal against the other respondents who are on record. The question of effect of partial abatement of the appeal against the other respondents then has to be determined by general principles. If the case is of such a nature that the absence of the legal representatives of the deceased from the record prevents the Court from hearing the appeal as against the other then the appeal may not proceed. This results in total abatement. This question as is viewed in the judgments, must depend upon the very nature of each case. As is observed, this question must be dependent from its very nature upon the facts in each case and it is scarcely possible to formulate a rule of general application which can, in all cases, serve as rigid formula for the Court to determine when it can or cannot proceed to dispose of the appeal against the existing parties on record. The Courts have faced difficulty in those cases where the decree appealed against is joint. It is in such cases rider is put that if decree appealed from against the surviving respondents in case success of appeal becomes ineffective in the sense it could not be successfully executed. Three tests which have been laid down by the Hon'ble Supreme Court in Nathu Ram's case (supra) have already been noticed. These are then to be applied. The question of applying the procedure would arise only under C.P.C. which is seen not applicable.

Important thing to note here is that all the judgments referred were passed in the cases of appeals as the respondent had died during pendency of appeals and application for bringing the legal representative on record had not been moved. In such a situation, the Courts came to a conclusion that decreed by the Appellate Court would be in conflict with the decision between the appellant and deceased respondent. Conflict would arise because of decree which had become final in respect of one of the respondent and it would then become an issue. In the present case, no decree is yet passed. In this case, the Tribunal below is still to adjudicate the liability of the various defendants. The issue involved is not an abatement of the appeal but an abatement of 'OA'. The OA is still being prosecuted against some of the defendants. It may be that the legal effect of death of the defendant is that the OA may abate against him. The abatement would remain in suspended animation. Whether the effect of no application being made for bringing on record the legal representatives of said persons would lead to the abatement of OA qua defendant No. 2 and defendant No. 6 may have to be seen in terms of the provisions made in the RDDBFI Act. It may also be taken that there was no need for any specific order but that is the effect of law laid down under C.P.C. At the same time, it is to be kept in view that once application for bringing on record legal representatives of deceased defendant was filed, the abatement would get revived automatically if such application is allowed. This application is still pending. It cannot be rendered infructuous especially so when no such prayer is advanced before Tribunal below.

In the present case, it cannot be ignored that the Tribunal below had allowed the application for bringing on record the legal representatives of deceased defendants which order had to be reviewed because of the reasons which are noticed above. The fact also cannot be ignored that there is yet another application filed by the Bank on which the Tribunal below has yet to pass an order. As on date, the worst situation may be that the OA has abated against the deceased defendant whose legal representatives have not been brought on record. It cannot be said that the OA has abated in its entirety. The application for bringing on record the legal representatives of the defendant No. 2 is still pending adjudication. It will depend upon the order passed on this application to see if the OA qua defendant No. 2 would remain abated or would get revived on his LR being brought on record. As held by the Hon'ble Supreme Court in Mithailal Dalsangar Singh's case (supra) a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as prayer for setting aside abatement. It is also noted that prayer for setting aside the abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated may not be called for. Yet the legal representatives proposing to be brought on record or any other application proposing to bring the legal representatives of the deceased party on record would lead to the setting aside of the abatement. As held, a prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement, is necessarily implied. The Court has also held that too technical of pedantic approach in such cases is not called for. That being the law, technical approach in the present appeal would certainly not be called for. Even pedantic approach is not required as held by the Hon'ble Supreme Court, Over and above, there is an issue of applicability of Order 22 of C.P.C.

As on date, the legal position is that an application for bringing on record the legal representatives of deceased defendant No. 2 is pending adjudication. If allowed, concededly it will lead to setting aside of the order of abatement which though has not been specifically passed, but has come into being by operation of law. The abatement results in denial of consideration of case on merits and, thus, such provision has to be strictly construed. As held by the Supreme Court, prayer for setting aside of abatement has to be considered liberally. That being the nature of approach laid down by the Supreme Court, it would have to be followed in letter and spirit.

The appellant would contend that the issue of abatement of 'OA' on account of death of a party, which is a necessary party, and whose legal representative(s) is/are not brought on record within the prescribed period and where setting aside the abatement is also not sought within the period prescribed, may require, to be answered in terms of Order 22, Rules 3 and 4 of the Code of Civil Procedure. The view of this Tribunal, has been different as expressed in the cases of Usha Mankotia (supra) and Rajendra Dorian Punj (supra). Even if we assume for the sake of arguments that Order 22 has to guide the situation, it may then not be possible to ignore the automatic abatement but one has to keep in view that the provisions of the Code of Civil Procedure are with a view to advance the cause of justice. The Tribunal below has yet to consider whether the Bank has pleaded sufficient cause for not moving application for impleading the legal representatives in time. Such a plea or cause, if pleaded, may not need to be examined by taking strict view. The question does not relate to the merit of the dispute between the parties as merits of the dispute can only be determined when abatement is set aside. If the abatement is not set aside then the party is certainly deprived of his claim may be due to some culpable negligence and lack of vigilance on his part. It is in this background that the Court would be under obligation to see if the cause for moving setting aside of the abatement or applying late has been explained or not.

The Tribunal below is fully justified in stating that the appellant and the other defendants had been participating in the proceedings without bringing the fact of death of defendants before the Tribunal below. The Bank cannot be strictly under a duty to make regular inquiry from time-to-time about the health and existence of the defendants. It may have to show reasons as to how it came to know of the death belatedly. Abatement may be automatic, but it would be only in respect of defendant No. 2, who has died. The setting aside of this order having come into existence impliedly would be automatic once an application for bringing on record the legal representatives is allowed. This application is still pending.

From the impugned order, it is not made out whether this plea that the OA has abated in its entirety has been raised before the Tribunal below or not? The review of the order was not sought by the appellant. He was not represented before the Tribunal when the impugned order was passed. As already noticed, this would depend upon the facts and circumstances of each case. It is debatable if the 'OA' has abated as Order 22 may not apply. Even if 'OA' is to abate, it will be qua the deceased as per Order 22 Rule 4. Thus, the issue whether this OA will abate in entirety has to be, thus, considered having regard to the facts in the present case. The judgment cited by the Counsel of a case in which such issue was raised in the appeal after adjudication of the suit by the Trial Court.

There may be a need to refer to certain provisions of the Indian Contract Act, which may regulate the liability of the guarantor and surety. Section 124 of the Contract Act talks of contract of Indemnity. Section 125 of the Act makes a provision for rights of indemnity-holder when sued. As per this section, the promisee in a contract of indemnity, acting within the scope of his authority, is entitled to recover from the promisor all the damages which he may be compelled to pay in any suit and all costs which he may be compelled to pay. As per Section 126, a contract of guarantee is a contract to perform the promise or discharge the liability, of a third person in case of his default. Section 127 provides that anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee. Section 128 of the Contract Act would regulate the liability of a surety. As per this section, the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract. A guarantee as per Section 129 is a continuing guarantee which extends to a series of transactions. Section 130 of the Contract Act empowers a surety to revoke a continuing guarantee. As per Section 131; the death of a surety operates, in the absence of any contract to the contrary, as a revocation of a continuing guarantee. Section 132 talks of liability of two persons primarily liable, which is not affected by arrangement between them that one shall be surety on other's default. Variance in terms of the contract leads to discharge of surety when variance is done without his consent, as per Section 133, Section 134 talks of discharge of surety by release or discharge of principal debtor. As per Section 135, the surety gets discharged when the creditor compounds with, gives time to, or agrees not to sue, principal debtor. The surety, however, is not discharged when agreement made with third person to give time to principal debtor, as per Section 136. Section 137 provides that mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not, in the absence of any provision in the guarantee to the contrary, discharge the surety. Section 138 of the Contract Act provides where there are co-sureties, a release by the creditor of one of them does not discharge the others, neither does it free the surety so released from his responsibility to the other sureties. Even the provisions of Section 139 of the said Act deal with discharge of surety by creditor's act or omission impairing surety's eventual remedy. The effect of all these sections may have also to be considered in this case. The provisions contained in Chapter VIII of the Act is relating to indemnity and guarantee are to be read together. Liability of surety as stated in general terms in Section 128 of the Act no doubt co-extensive but that of the principal debtor is also subjected to the terms of the contract. Unless some rights have been given up, liability of the surety or guarantor may have to be considered in the light of the provisions contained in the Contract Act.

Apart from the above, there are decisions of this Tribunal where it is viewed that the provisions of Order 22 of the Code of Civil Procedure regarding abatement are not applicable to the procedure prescribed for the Debts Recovery Tribunal. Though it is not pleaded before me that Order 22 would not apply yet this issue being legal have to be considered. I have accordingly dealt with this issue. Even in Nathu Ram's case (supra), the Court has observed that the Code of Civil Procedure does not provide for the abatement of the appeal against the other respondents once an application for bringing on record the legal representatives of the deceased is not filed. It is observed that in certain circumstances the appeals against co-respondents would also abate as a result of the abatement of the appeal against deceased respondent. The Courts have not always agreed with respect to the result of the particular circumstances of a case and there has been consequently, divergence of opinion in the application of the principle. In this context, the Court has observed that Order 22 Rule 4 of the Code of Civil Procedure also does not provide for abatement of appeal against the co-respondent of the deceased respondent. There can be no question of abatement of appeal against them, it is also observed that the appeals against them abated in certain circumstances, is not a correct statement. The appeal against them cannot proceed in certain circumstances and therefore have to be dismissed which result would depend on the nature of the relief sought in the appeal. Same conclusion can be drawn from the provisions of Order 1 Rule 9 of the Code of Civil Procedure, which provides that no suit shall be defeated by reason or the mis-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court in this case has also observed that the question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore exhaustive statement cannot be made about the circumstances when this is possible or it is not possible, Test to determine this has been described which have been noticed above. The question whether abatement is partial or total in case of a suit depends on the nature of rights but in appeals, it has to be decided with reference to the nature of decree appealed against (See Umrao v. Kapuria, AIR 1930 Lahore 651). All the cases cited before me related to the appeals and abatement was upheld because conflicting decrees being coming into existence. It is also observed that abatement of appeal should not be decided merely on the formality of decree or challenge or manner it was dealt with by the Court by passing it. In such cases, the first question to determine is if the right to sue survives when a party dies. One has to keep in view that the provisions are not penal in nature and it contains rule of procedure and substantial right of parties cannot be defeated by pedantic approach or by divergence opinion to the procedural law. The Courts have also viewed that where one of the respondents has died during pendency of the proceedings and delay in bringing his legal representatives on record was due to the failure of the other respondents to furnish details of the legal representatives whose names were not ascertained, such delay was liable to be condoned. It is also to be seen as to what is the interest of deceased defendant in the case and whether he represented the entire interest or only a specific part is a fact that has to depend upon the circumstances of each case. If the interests of the co-defendants are separate, as in the case of co-owner, the suit generally will abate only as regards the particular interest of the deceased party. A distinction has to be made between the cases in which there is no specific interest. In cases where there is a specification of share or interest, the appeal cannot abate as a whole and it abates only in respect of the interest of the deceased. It is to be noted that Order 22 Rule 4 does not provide that by omission to implead the LR of a defendant in the case the suit will abate as a whole. The Supreme Court in the case Mithailal Dalsangar Singh (supra) has made one very significant observation to the effect that "a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety". It is also held that the Courts have to adopt a justice oriented approach dictated by upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court. It is further observed that opinion of the Trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'significant cause' within the meaning of Sub-rule (1) of Rule 9 of Order 22 and Section 5 of Indian Limitation Act, 1963 deserve to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. It will therefore be appropriate to have the view of the Tribunal below whether the case for condoning the delay is made out or not and so also the effect of pending application and also the effect of the fate of the application for bringing on record L.Rs. of defendant No. 6. The Tribunal below may consider this issue in the light of legal position culled out for deciding issue of abatement of 'OA'. All these aspects have to be considered and taken into account by the Tribunal below. In my considered opinion, in fairness, this Tribunal should await the outcome of the application for bringing on record the L.Rs. of defendant No. 2. The issue has to depend on number of legal issues arising in this case and would also depend upon factual position in the case in regard to liability of the respective parties. It will also depend on the application filed by the Bank for impleading the legal representatives of defendant No. 2. The present appeal is accordingly disposed of with a liberty to the parties to raise the relevant pleas in pending application before the Tribunal below which shall consider the same in accordance with law especially when the application for bringing on record the legal representatives of defendant No. 2 is pending before the Tribunal below.