JUDGMENT
H.L. Agrawal, C.J.
1. Whether this appeal has become incompetent as a whole on account of the death of some of the respondents and what would be the correct test for dealing with the question of incompetency are the questions which have fallen for consideration in this appeal under the Letters patent jurisdiction of this Court.
2. The appeal is by the defendants whose Miscellaneous Second Appeal arising out of an execution proceeding has been dismissed by a learned single Judge of this Court.
3. When the appeal was taken up for hearing, a preliminary objection regarding the incompetency of the appeal was raised by Mr. R. K. Mohapatra, learned counsel for the respondents. In order to appreciate the preliminary objection raised by him that the appeal has become incompetent on account of the death of respondent Nos. 9,13,14,16, 17, 28, 31 and 32 during the pendency of the appeal before the Division Bench, it is necessary to state in brief some of the facts.
4 The plaintiff-respondents filed a suit for declaration that plaintiff No. 1 represented by plaintiff Nos. 2 to 4 was the owner of the suit land described in Schedule ‘Kha’ to the plaint. Accordingly, the sale, deed executed by defendant Nos, 10 to 12 in favour of defendant Nos 1 to 3 treating the property as their personal property was challenged.
The suit was contested on various grounds, but we are not concerned with the details to answer the preliminary objection.
The learned Munsif decreed the suit declaring the Schedule ‘Kha’ land as debottar property and thus, no right Was conveyed under the sale deed in favour of defendant Nos. 1 to 3.
The defendants filed an appeal in the Court of the District Judge, Cuttack, who allowed the same and dismissed the suit. In the meantime, the decree was put to execution by all the plaintiff-decree-holders. After reversal of the decree by the lower appellate Court, an application Under Section 47 of the Code of Civil Procedure was filed by the defendant-judgment-debtors that on account of the reversal of the decree under execution, the execution proceeding was not maintainable and the decree-holders in their show cause took the stand that inasmuch as two of the plaintiffs had not been impleaded as party-respondents in the lower appellate Court the reversal of the decree passed in their favour the appellate Court was a nullity. The execution case therefore was maintainable.
5. The executing Court dismissed the objection of the judgment debtors holding that the decree of the lower appellate Court was a nullity. The judgment-debtors’ Miscellaneous Appeal against the order of the executing Court before the lower appellate Court also failed and then they filed a miscellaneous appeal being Misc Appeal No. 60 of 1972 in this Court and that was also dismissed. And against that order, the present appeal has been filed. It further appears that Second Appeal No, 7 of 1966 was also filed against the judgment of the lower appellate Court which was subsequently allowed to be dismissed.
6. It was submitted by Mr. R. K. Mohapatra appearing for the respondents that on account of the death of the aforesaid respondents (decree-holders), the order of the executing Court dismissing the misc. case of the appellants on the ground that the decree of the lower appellate Court was a nullity and therefore the decree passed by the trial Court was executable which was affirmed by the lower appellate Court as well as by this Court has become final and conclusive so far as the heirs and the legal representatives of the deceased-respondents are concerned and the present appeal in its entirety has become incompetent for the obvious and simple reason that any interference with the judgment of the learned Single Judge will offend the theory of two conflicting decrees/ orders.
7. Learned counsel appearing for the appellants, on the other hand, submitted that since the deceased-respondents had no personal interest as such in the decree as they were simply representing the deity, their death did not affect the rights of the derty which was still represented by the remaining shebaits. In support of his proposition he relied upon a decision of this Court in the case of Guru Charan Jena v. Satyanarayan Jew Thakur and Ors. (AIR 1971 Ori. 15) the facts of which are entirely different. The question that fell for consideration in that case was as to whether the suit on account of non-joinder of some of the shebaits representing the deity, when others were already there, would fail. It was held that if the Court was satisfied keeping in view the facts of a particular case before it that the deity was adequately represented and on account of not impleading some of the co-shebaits the deity was not affected, the suit could not be thrown out. The rest of the observations made by this Court rather goes against the appellants because it has been held that:
“…Normally, the deity has to be represented by the entire body of shebaits but a suit by some of the shebaits, if it is in the interests of the deity, can be maintained in certain special circumstances…”
No such special circumstance was brought to our notice. Apart from that, the legal position in a case where there is defect of parties in the trial Court at the initial stage and where abatement takes place after the decree of the trial Court is entirely different. This distinction has not been correctly appreciated by the learned counsel for the appellants. The theory of conflicting decrees or abatement of the appeal against the heirs of some of the parties and its consequences upon the whole appeal has got a different connotation altogether.
Learned counsel further submitted that the finding that the decree of the lower appellate Court was a nullity is entirely erroneous and therefore the preliminary objection must be examined along with the merits of the appeal,
8. This submission of the learned counsel for the appellants is entirely misconceived. He, however, invited our attention to the finding of the executing Court in the misc. case filed by the judgment-debtors Under Section 47, C.P.C, where, while considering the absence of the two of the plaintiffs, namely, Naban and Musa in whose favour also the suit had been decreed by the trial Court and on account of whose absence the point of ‘nullity’ of the decree of the lower appellate Court was urged, it was held that the execution case at the instance of the two ladies could continue and the appellate decree did not bind their interests. The learned counsel for the appellants had to concede that the above view of the learned Subordinate Judge was unsustainable and betrayed his elementary knowledge of the correct legal position in the matter. The appeal against the decree of the trial Court being incompetent due to the absence of two necessary parties, the appellate Court could not proceed with the appeal as the success of the appeal was bound to lead to conflict of decisions between the appellants and the absenteerespondents. [See 51( 1981) CLT 327 : Amitav Ray v. Ashok Kumar Ray and another]. By this finding, he contravened the principles of “conflicting orders and decrees”.
9. At this stage, I may refer to the case of Smt. Angurbala Mullick v. Debabrata Mullick (AIR 1951 S. C. 293). B. K. Mukherjee J. speaking for the Court, while considering the general law of succession to shebaitship, observed that succession to shebaitship, even though there is an ingredient of office in it, follows succession to ordinary or secular property. It is the general law of succession that governs succession to shebaitship as well. It is in this context that the Orissa decision {supra) has said that normally the deity has to be represented by the entire body of shebaits. Even if the above exposition of law is applied to the facts of the present case, then also the heirs and the legal representatives of the various respondents who died during the pendency of the present appeal should have been substituted in place of their respective ancestors. It is well-settled that:
“…in the absence of the legal representatives of the deceased-respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.”
(AIR 1962 S. C. 89 : State of Punjab v. Nathu Ram)
10. The judgment of the leared Single Judge of this Court has clearly stated that all the plaintiffs, i. e., the decree-holders in the trial Court were entitled to proceed with the execution of their decree ignoring the decree of the lower appellate Court which was a nullity. Due to non-substitution of the legal representatives of the deceased-respondents and the consequent abatement of this appeal against them, the whole appeal has abated as this is essentially a case in which the decision of the Court is indivisible.
11. The preliminary objection, therefore, must be accepted as valid. As a result, the appeal is, incompetent as the abatement of the appeal against some of the respondents would be fatal and therefore affect the whole appeal. It is accordingly dismissed, but, in the circumstances, I leave the parties to bear their own costs.
B.K. Behera, J.
12. I agree with my Lord the Chief Justice.