When O. 22, R. 4, C.P.C. does not provide for the abatement of the appeal against the co-respondents of the deceased respondent there can be no question of abatement of the appeal against them.
The only question is whether the appeal can proceed against them. The provisions of O. 1, R. 9, C.P.C. also show so that if the court can deal with the mater in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it.
It is only when it is not possible for the court to deal with such matters that it will have to refuse to proceed further with the appeal and therefore dismiss it. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can made about the circumstances when this is possible or is not possible.
i.ytimg.com
ADVERTISEMENTS:
It may however be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellant and the respondents, other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision to the controversy before the court.
The test to determine this has been described in diverse forms. 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 will 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-matter between the appellant and the deceased respondent;
ADVERTISEMENTS:
(b) When the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court; and (c) when the decree against the surviving respondents if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed. (State of Punjab v. Nathu Ram, A.I.R. 1962 Supreme Court, 89).