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TMI Blog1966 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... nt due at the foot of the hypothecation account, and for sale of the goods in satisfaction of the amount due. The two suits were consolidated for trial. In suit No. 43 of 1952 the first respondent applied for appointment of a receiver and the Court directed the second respondent to furnish security in the sum of Rs. 50,000/-. Pursuant to this order five persons stood sureties for satisfaction of the decree. It was recited in the surety bond dated April 21, 1953, that the five sureties mortgaged the properties specified in the Schedule annexed thereto and jointly and severally agreed that if any decree was passed against the second respondent they shall comply with the same and in default the amount payable under the decree but not exceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on October 18, 1962. As he died before the record of the appeal was transmitted to this Court, his heirs and legal representatives applied on July 24, 1963, to the High Court for an order under O. 16, r. 12 of the Supreme Court Rules, 1950, certifying that they were proper parties to be impleaded as legal representatives on the record of the appeal. They also applied for condonation of delay in moving the application. The High Court held that there was no adequate explanation justifying an order condoning the delay in making the application for bringing the heirs on record and accordingly the application for condonation of delay and application for certifying the heirs were dismissed. A petition submitted to this Court for impleading the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... futed by the judgment of this Court in Rameshwar Prasad and Others v. Shambehari Lal Jagannath and another. [1964]3SCR549 . It was held by this Court in Rameshwar Prasad's case [1964]3SCR549 that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O.41, r. 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. 6. The two principal pleas raised before Grover, J., were that the surety bond was not enforceable because it was not registered and that the decree-holders had committed an act by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it : otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court in deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests to determine this have been described thus : (a) when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Nathu Ram's case [1962]2SCR636 are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirety. 10. But counsel for the appellants has contended that the rules laid down by this Court in Nathu Ram's case [1962]2SCR636 and other cases has no application to this appeal, firstly, because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained in O.22, r. 12 Code of Civil Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree appealed against gives rise to a liability which is joint and several it is open t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption in favour of any class of appeals. It is true that r. 14-A of O.16 of the Supreme Court Rules, 1950, provides that : The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 13 in the High Court and in the Supreme Court. And thereby the provisions of O.22 relating to abatement of appeals are attracted. But there is no warrant for holding that any class of the appeals filed in this Court is exempt from the operation of r. 14. 11. Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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