LEGAL OPINION
Re: Effect of Non-compliance with the High Court's Order Directing Removal of Office Objections and Consequence of Abatement Against Respondent No. 5
The appeal arises from a judgment and decree concerning ancestral agricultural property. During the pendency of the appeal, Respondent No. 5 died and his/her legal representatives (LRs) were brought on record. The appellants have failed to remove the office objections relating to correction of the cause title for nearly 18 months.
The Division Bench has passed the following order:
"Learned counsel for the appellants prays for and is permitted to remove office objections within 48 hours subject to payment of Rs.2,000/- during the course of the day. Failure to deposit the amount will entail abatement of the appeal against Respondent No.5."
The questions for consideration are:
1. What is the legal status of the LRs of Respondent No.5 if the appellants fail to comply with the order?
2. What remedy is available to the LRs if the appellants do not comply?
The High Court has expressly directed that failure to deposit costs and remove office objections shall entail abatement of the appeal against Respondent No. 5.
An appeal abates against a deceased respondent where the legal representatives are not validly brought on record or procedural requirements are not complied with within the prescribed period.
The relevant provisions are:
- Order XXII Rule 4 CPC – Procedure where one of several defendants/respondents dies.
- Order XXII Rule 9 CPC – Effect of abatement and procedure for setting it aside.
- Section 107 CPC – Powers of the Appellate Court.
- Order XLI CPC – Procedure in appeals.
Once the condition imposed by the Court is not fulfilled, the consequence specified in the order follows automatically. Therefore:
- the appeal stands abated only against Respondent No. 5 unless the Court subsequently sets aside the abatement;
- the decree of the Trial Court, so far as it concerns Respondent No. 5 and his/her legal representatives, ordinarily attains finality, subject to any future application for setting aside abatement under Order XXII Rule 9 CPC;
- the legal representatives continue to remain bound by the Trial Court decree and are no longer required to contest the appeal unless the abatement is set aside.
If the appellants fail to comply with the High Court's order, the legal representatives of Respondent No. 5 may take the following steps:
1. File a memo before the High Court bringing to its notice that the appellants have failed to comply with the conditional order and pray that the Registry record the appeal as abated against Respondent No. 5.
2. Oppose any future application seeking:
o condonation of delay under Section 5 of the Limitation Act, 1963;
o setting aside abatement under Order XXII Rule 9 CPC,
unless the appellants establish "sufficient cause."
3. If the rights of the parties are inseparable and the appeal cannot proceed effectively in the absence of Respondent No. 5, the legal representatives may contend that the entire appeal has become incompetent owing to partial abatement.
Whether the appeal abates only against Respondent No. 5 or as a whole depends upon the nature of the decree.
The Supreme Court has consistently held that where the decree is joint, indivisible, or inseparable, abatement against one necessary party may result in dismissal of the entire appeal to avoid contradictory decrees.
Since your matter concerns ancestral agricultural property, the question whether the appeal survives against the remaining respondents depends on whether the Trial Court decree is divisible or inseparable.
Conclusion
1. If the appellants fail to comply with the conditional order of the High Court within the time granted, the appeal shall stand abated against Respondent No. 5 in terms of the order itself.
2. The legal representatives of Respondent No. 5 shall cease to be parties to the appeal unless the abatement is subsequently set aside under Order XXII Rule 9 CPC.
3. The legal representatives are entitled to file an appropriate memo before the High Court requesting that the Registry record the abatement and proceed in accordance with law.
4. If the decree under challenge is joint and indivisible, the legal representatives may further contend that the appeal itself is liable to be dismissed as having become incompetent due to partial abatement. This issue must ultimately be determined by the Division Bench on the facts of the case.
