MADHYA PRADESH HIGH COURT

                                               Pyarelal

                                                  Vs.

                                         Modi Sikharchand

                                   First Appeal No. 75 of 1950
                                        (Sen and Bhutt, JJ.)

                                             31.12.1956

                                            JUDGMENT

Sen and Bhutt, JJ.

   1. This is plaintiffs' appeal against the dismissal of a part of their claim for
       damages by the 2nd Civil Judge, 1st Class, Sagar, in civil suit No. 11-B of
       1947.

   2.
2. The suit was instituted by Pyarelal and Pannalal, sons of Jankiprashad, Babulal, and
Narayandass and Bhagwandass, sons of Babu Surajdin. They were carrying on
business of purchase and sale of grain as partners of a registered firm styled Durga
Prashad Ganesh Dass, shortly called Durga Ganesh. They entered into a contract with
the defendant on 6-7-1947 for purchase of his stock of linseed at Satna. Out of this
stock, a lot of 2500 bags was lying in the go down of the defendants' commission
agent, Ramchand Rampratap, which was sold to the plaintiffs F. O. R. Satna at Rs.
44/13/9 per bag of 90 seers net, alter packing them in new gunny bags. The lower
Court has found that the defendant broke the contract and was liable in damages to the
plaintiffs. It has, however, determined the damages at the rate prevailing at Satna, and
not at Lillosh (Calcutta) on 28-7-1947 when the contract was broken. In this view, it
awarded to the plaintiffs, Rs. 1914/1/- for damages instead of Rs. 9524-9-0 as
claimed. This appeal was accordingly filed by the plaintiffs for claiming the balance
of Rs. 7610/8/-.

   3. During the pendency of the appeal, Pannalal died on 17-2-1954 and his legal
       representatives were duly brought on record. Pyarelal meanwhile also died on
       17-10-1954. An application for substitution of his legal representatives was
       filed on 20-1-1955 after the period of limitation. Another application for setting
       aside the abatement was filed on 25-2-1955. These applications were dismissed
       by an order of this Court on 28-3-1955, and a Letters Patent appeal from the
       order was also dismissed on 18-7-1955 in motion hearing. The appeal has thus
       abated so far as Pyarelal is concerned. The question is if it has abated as a
       whole.
   4.
4. There appears no doubt that the suit is governed by section 45 of the Indian
Contract Act, (Act No. IX of 1872), which is reproduced below :

       "45. Devolution of joint rights.-When a person has made a promise to two or
       more persons jointly, then, unless a contrary intention appears from the contract,
       the right to claim performance rests, as between him and them, with them
       during their joint lives, and after the death of any of them, with the
       representative of such deceased person jointly with the survivor or survivors,
       and, after the death of the last survivor, with the representatives of all jointly."

The plaintiffs were joint promises, and therefore, had a joint right of suit, and
consequently of appeal. Accordingly, on the death of one of them, the right to continue
the appeal vested jointly in the survivors and the legal representatives of the deceased.
In this connection, Ganeshmull v. Sohanlal, 1 which was relied upon by the learned
counsel for the appellants, has no application as it deals with the case of joint promises
and not of joint promises. Therefore, the legal representatives of Pyarelal were
necessary parties to the appeal.

   5. It was, however, contended that the matter is governed by Order 30, Rule 4 of
       the Code of Civil Procedure as the plaintiffs were partners, and although they
       had instituted the suit in their own names, the firm as such was really the
       plaintiff. This contention was also raised in Hari Singh v. Karam Chand Kanshi
       Ram,2 in which it was negatived on the ground that Order 30, Rule 4 of the
       Code of Civil Procedure did not apply as the suit was not instituted in the name
       of the firm. Whether or not, this view may be correct, it appears that Order 30,
       Rule 4 only deals with the form of suits and does not affect the question as to
       whether the representative of the deceased (party) was or was not a necessary
       party to the suit.

   6. An attempt was also made to bring the case within the four-corners of O. 41,
       Rules 4 and 33 of the Code of Civil Procedure. In Malobi v. Gous Mohmad, 3 , it
       was observed, following Ramphal Sahu v. Satdeo Jha,4 and Ghulam
       Muhammad v. Sherdilkhan5 that Order 41, Rule 4 suggests that the rule was
       intended to apply to cases where all the plaintiffs or defendants were alive and
       only one or more of such plaintiffs or defendants had appealed from the decree.
       In this case Abdul Rahman v. Girjesh Bahadur Pal, 6 was not considered, in
       which it was observed that in applying Order 41, Rule 4 of the Code of Civil
       Procedure, there is no essential difference between ­

       (i) the case where some only of the plaintiffs or defendants, as the case may be,
       have appealed without impleading the others,
       (ii) the case where all the plaintiffs or defendants have appealed and one of
       them dies and his heirs are not substituted, and
       (iii) the case where some only of the plaintiffs have appealed and have
       impleaded the non-appealing plaintiffs and the pro forma defendants having the
       same interests as the plaintiffs and one of the non-appealing plaintiffs or pro
       forma defendants dies and his heirs are not brought on the record.

Similar view was held in Mt. Krishna Dei v. Governor General in Council, 7 and
Halima Khatun v. Sashi Kumar Banik,8 although in the latter case, it was doubted
whether the rule would apply to cases where the persons who were not joined were
necessary parties to the appeal. It appears to us that where it is impossible to proceed
with the appeal in the absence of the legal representatives of the deceased, the appeal
abates in toto despite the provisions in Order 41, Rule 4 or R. 33 of the Code of Civil
Procedure: See Mohammad Faruq v. Azizul Hasan, 9 and Dhondo Khando v. Waman
Balwant, 10

7. If another view is held, it would exclude from the Code of Civil Procedure, Order
22, Rule 3. Therefore, while, as held in Sheo Govind v. Zahur Mohammad, 11 it would
not be proper to read Order 41, Rule 4 out of the Code and nullify its effect, it would
also not be proper to read it in a manner so as to exclude the operation of Order 22,
Rule 3. The two provisions can be reconciled if Order 41, Rule 4, or for the matter of
that, Rule 33, is held to apply only to cases where the legal representatives of the
deceased are not necessary parties to the lis. As in the instant case, the legal
representatives of the deceased appellant, Pyarelal, were necessary parties to the
appeal and were not brought on record in his place, the abatement of the appeal as a
whole cannot be saved on the basis of Order 41, Rule 4 or R. 33 of the Code of Civil
Procedure.

8. The appeal accordingly is dismissed. There shall, however, be no order as to costs.

Appeal dismissed.

Cases Referred.

1. ILR 1955 Nag 33: AIR 1956 Nag 111
2. ILR 8 Lah 1: AIR 1927 Lah 115
3. ILR 1948 Nag 509: AIR 1949 Nag 91
4. ILR 1940-19 Pat 870 (FB)
5. ILR 1942 Kar 435
6. ILR 1938 All 350: AIR 1938 All 235
7. AIR 1950 All 1
8. AIR 1947 Cal 453
9. AIR 1935 Oudh 329
10. AIR 1945 Bom 126
11. ILR16 Luck 382