. BHOLA NATH MISRA vs RAJENDRA PANDEY & ANR. Supreme Court, 20-02-1997

Court:Supreme Court (India)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
BHOLA NATH MISRA
Vs.
RESPONDENT:
RAJENDRA PANDEY & ANR.
DATE OF JUDGMENT: 20/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
of the learned single Judge of this Allahabad High Court,
made on April 21, 1978 confirming the decree of the trial
Court and appellate Court granting a perpetual injunction
against the appellant and the second defendant restraining
them from making any construction on the land in dispute, as
shown in the map annexed to the plaint and also mandatory
injunction to demolish the construction in so far as it
relates to the construction on such land. The second
defendant remained ex-parte in the trial Court and the
decree as against him had become final. The appellant/first
defendant carried the matter in appeal which was confirmed
and the second appeal was filed. Counsel appearing for the
appellant made a statement on December 6, 1976 that he was
not seeking any relief against the second defendant and the
decree as against the second defendant having become final,
he was not proposing to take out any service of notice on
the second defendant. As a result, the Court noted on that
date that "The effect thereof should be brought to the
notice of the court" when the appeal was to be heard on
merits. Consequently, when the matter had come up for
hearing on merits, the learned Judge proceeded on the
premise that the decree as against the second defendant
being joint and inseperable, the same had become final, as
against the second defendant; it was abated and so it would
not be proper to go into the merits in the matter. As a
consequence, the appeal also was dismissed without going
into the merits, as contended by the appellant. Thus, this
appeal.
Palpably, the view taken by the High Court is not
correct. The question of abatement of the appeal does not
arise because this is not a case of any of the parties
expiring pending proceedings followed by omission to bring
the legal representatives on record. In that situation only,
the appeal gets abated. But when the decree as against one
of the defendants has become final and is either not
contested or is not carried in appeal, the decree becomes
enforceable as against the defendant who suffers the decree.
But when one of the defendants contests the correctness of

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