Skip to main content

When Does Death Of A Co-Appellant Result In The Abatement Of Appeal As A Whole?

In CIVIL APPEAL NO.4103 OF 2008, HEMAREDDI vs RAMACHANDRA YALLAPPA HOSMANI, an appeal was brought before the Supreme Court out of a suit which was instituted by two brothers jointly for declaration that the adoption of the first defendant was invalid and therefore he had no right in the joint properties of the plaintiffs. The trial court dismissed the Courts will not proceed with an appeal: (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject suit. The matter was taken in appeal to the High Court. During the pendency of appeal, one of the brothers died. But no steps were taken to bring on record the legal representatives of the deceased brother. The appeal was continued by the surviving brother. The High Court dismissed the appeal holding that entire appeal stood abated as a whole, as the abatement in respect of the deceased brother was not set aside and his legal representatives were not brought on record. Challenging this, appeal was filed in the Supreme Court.

The Supreme Court surveyed a lot of precedents which discussed the circumstances under which the abatement as against one of the parties operated against the appeal as a whole and came to the conclusion that there is no doubt that when in a suit filed by one or more litigants, and one of the dies, if the legal representative of the deceased litigant does not substitute themselves in the suit within stipulated time, the appeal would abate for the legal representative of the deceased litigant. As for the question of the status of the other litigant(s) in a situation where appeal has abated for the deceased litigant, the Supreme Court took the view that in such a situation it would have to be seen that if the appeal is allowed to be continued with the surviving litigant, it must be ensured that the final decree is not unfair to the deceased litigant. Therefore each issue should be considered on case to case basis and that in the current matter the right which was set up by the appellant alongwith his late brother was joint. It was not a case where their claims were distinct claims. If the High Court were to allow the appeal of one of the brothers, it would be contradictory to the decree of the trial court as against the deceased brother, which had attained finality. Thus, there would be two decrees, one upholding the adoption and another invalidating the adoption, in the same proceeding. That is impermissible in law.

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Court approached in the early stages of arbitration will prevail in all other subsequent proceedings

In National Highway Authority of India v. Hindustan Steelworks Construction Limited, the Hon'ble Delhi High Court opined that once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.
Post a Comment
Read more

No Rebate For Stamp Duty Paid In Another State - Bombay HC

A three judge bench of the Hon'ble Bombay High Court (Bombay HC) in a recent judgment in the matter of Chief Controlling Revenue Authority, Maharashtra State, Pune and Superintendent of Stamp (Headquarters), Mumbai v Reliance Industries Limited, Mumbai and Reliance Petroleum Limited, Gujarat1 has held that orders in case of a scheme of arrangement under Section 391 to 394 of the Companies Act, 1956 (Act) involving different High Courts in multiple states, are separate instruments in themselves. Accordingly, stamp duty would be payable on all the orders (and consequently, all the states) without the benefit of remission, rebate or set-off.
Post a Comment
Read more