The Supreme Court in the case Sakharam (D) vs Kishanrao observed that a second appeal does not abate on death of one of the respondents when the right against the surviving respondent to sue survives.
The bench comprising of the Justice Indira Banerjee and the Justice V. Ramasubramanian observed that the abatement occurs only when the cause of action does not survive upon or against the surviving party.
In the present case, the court considered an appeal against the Bombay High Court order dismissing a Second Appeal as having abated due to the death of one of the respondents. After the factual aspects of the case are noticed.
The bench observed that when two plaintiffs joined together and secured a decree of declaration and possession of an immovable property and one of the decree holders will not make the second appeal abate. As against the surviving successful plaintiff.
However, the court then referred to Order XXII Rules 2 and 11 of the Civil Procedure Code and observed that the above rule makes it clear that where there are more defendants. Against the surviving defendant, the suit shall produce. It is stated in Order XXII Rule 11 that the application of Order XXII to appeals, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal. Thus, if the word “defendant” appearing in Order XXII Rule 2 is replaced by the word “respondent”, it will be clear that the second appeal did not abate and the right to sue survives against the respondent surviving. The Order XXII Rule 2 of the Civil Procedure Code, 1908.
While allowing the appeal, the bench observed that the dismissal of the Second Appeal by the High Court on the ground that the appeal stood abated and without going into the merits of the case is not in accordance with law.
