Hazara Singh and others vs Balwinder Kaur and others

Rajinder Nath Mittal, J.—This first appeal has bden filed by the defendants against the judgment and decree of the Senior Subordinate Judge, Amritsar, dated 8th November, 1971.

Briefly the facts are that Dalip Singh husband of plaintiff No. 1 and father of plaintiffs Nos. 2 to 9, was murdered by the defendants. The plaintiffs instituted a suit for recovery of Rs. 30,000/- as compensation. It was contested by the defendants who controverted the allegation of the plaintiffs.

The trial Court decreed the suit in favour of the plaintiffs for the said amount as compensation. The defendants came up in appeal to this Court. During the pendency of the appeal Dara Singh appellant died on September, 1974. The learned counsel for the plaintiffs-respondents filed an affidavit of Gursharan Singh respondent that Dara Singh appellant had died leaving behind a large number of heirs and legal representatives and no application bad been moved for bringing his legal representatives on the record. He, consequently, prayed that the appeal may be dismissed as having abated.

Copy of the affidavit was given to Mr. Harinder Singh, learned counsel for the appellants, who requested for time to verify the aforesaid facts. He now states that in spite of his writing to the appellants, none of them has turned up to give him instructions in the matter. He further submits that even if it may be assumed that Dara Singh died, the appeal does not abate in toto and the appeal by the remaining appellants can continue. Mr. Sarin, learned counsel for the respondents, submits that after the death of one of the appellants, the appeal has abated in toto.

I have heard the learned counsel for the parties at a considerable length It has been observed in Rameshwar Parshad v. Shambehari Lal Jagannath AIR 1963 S.C. 1905, that an appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs 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 defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22 Rule 3. The above observations are fully applicable to the facts of the present case, as the decree proceeds in the present case against the defendants-appellants on a ground common to all of them. I, consequently, reject the submission of the learned counsel for the appellants

For the aforesaid reasons I do not find any merit in the appeal and dismiss the same with costs.