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iDraf
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Issue
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Arguments Of Respondent
Chintaman Nilkant
v.
Gangabai
(High Court Of Judicature At Bombay)
No | 09-01-1903
Chandavarkar, J
[1] The first point urged in this appeal is that Gangabai having died and no legal representative of hers having been brought on record the appeal abated, and that, therefore the Appellate Court had no jurisdiction to deal with the decree passed against Gangabai.
[2] No doubt under Sections 362 and 582, Civil Procedure Code, the appeal abated so far as Gangabai was concerned, but under Section 544, Civil Procedure Code, Anpurnabai had a right to appeal independently of the provisions of Section 362 and 582 of the Civil Procedure Code, if her defence was common to her and Gangabai, and the mere fact of her having been joined with Gangabai would not take away her right to appeal. It was held in Chandarsang v. Khimabhai (1897) 22 Bom. 718, that "decree having been passed against the defendants, it was open to any one of them to appeal against it if the ground of appeal was common to all defendants and it was open to the lower Appellate Court to deal with the appeal under Section 544."
[3] No doubt in the lower Appellate Court the appeal that was heard was the appeal of Anpurnabai, but in dealing with that appeal it was 5 open to the lower Appellate Court to hear and deal with the whole suit if the defence was common.
[4] The second point urged is as to the appreciation of evidence. The finding of the lower Appellate Court on this point is binding on us. Decree confirmed with costs.
[1] The first point urged in this appeal is that Gangabai having died and no legal representative of hers having been brought on record the appeal abated, and that, therefore the Appellate Court had no jurisdiction to deal with the decree passed against Gangabai.
[2] No doubt under Sections 362 and 582, Civil Procedure Code, the appeal abated so far as Gangabai was concerned, but under Section 544, Civil Procedure Code, Anpurnabai had a right to appeal independently of the provisions of Section 362 and 582 of the Civil Procedure Code, if her defence was common to her and Gangabai, and the mere fact of her having been joined with Gangabai would not take away her right to appeal. It was held in Chandarsang v. Khimabhai (1897) 22 Bom. 718, that "decree having been passed against the defendants, it was open to any one of them to appeal against it if the ground of appeal was common to all defendants and it was open to the lower Appellate Court to deal with the appeal under Section 544."
[3] No doubt in the lower Appellate Court the appeal that was heard was the appeal of Anpurnabai, but in dealing with that appeal it was 5 open to the lower Appellate Court to hear and deal with the whole suit if the defence was common.
[4] The second point urged is as to the appreciation of evidence. The finding of the lower Appellate Court on this point is binding on us. Decree confirmed with costs.
Advocates List
For the Appearing Parties ----
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HONBLE MR. JUSTICE CHANDAVARKAR
HONBLE MR. JUSTICE ASTON
Eq Citation
ILR 1903 27 BOM 284
LQ/BomHC/1903/1
HeadNote
Civil Procedure Code, 1908 — Ss. 544 and 582 — Appeal against decree passed against one of two defendants who were joined together — Effect of death of one of them — Concurrent finding of lower Appellate Court on appreciation of evidence
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