' This judgment will dispose of Civil Revision No, 434 of 1972 and F. A.
0. No, 106 of 1972, since both the matters arise out of the same judgment of Mr. Muhammad Islam Bhatti, Additional District Judge, Lahore, dated the 3rd May, 1972.
2. The facts are that Shadi respondent in the revision petition and appellant in the appeal, mortgaged different portions of an area of 2 kanals, 10 marlas separately to different persons including one Arurra. The mortgage in favour of Arurra was of a specified area of 4 marlas out of this area. Arurra deceased and the other plaintiffs-petitioners in the revision petition filed a suit for declaration that each of them was originally mortgagee of a separate area of the property and after obtahiing the mortgage-deed constructed his house over the area so mortgaged. All of them had become owners of the property by virtue of stipulations in the mortgage deeds. They also claimed permanent injunctions against disturbance of their possession over their properties. This suit was decreed in favour of all the plaintiffs, including Arurra. Shadi filed an appeal against the judgment and decree of the learned trial Court before the District Court on the 20th May, 1968.
During the pendency of that appeal Arurra died on the 4th February, 1969. Under Article 177 of the Limitation Act, his legal representatives ought to have been brought on the record within 90 days, after which the appeal could abate and in case of abatement of the appeal an application for setting aside the abatement could be made within 60 days of the date of abatement as provided under Article 171 of the Limitation Act. No application for bringing the legal representatives of Arurra on the record was submitted within 90 days nor was any application made within 60 days for setting aside the abatement of the appeal. It was on the 8th of October, 1969, that an application for impleading the legal representatives of Arurra was prepared by Shadi but he stamped that application on the 15th and submitted it in Court on the 16th October, 1969. An objection was taken in reply by the respondents in appeal that the appeal had abated in toto since Arurra had died on the 4th February, 1969. Another application for setting aside the abatement under Order XXII, rule 9, C. P. C. w, therefore, submitted on the 13th July, 1970, in which it was stated that Shadi did not have any knowledge about the death of Arurra and he came to know about it for the first time in October, 1969. In support of this, he stated that the parties are living in different villages.
3. The learned Additional District Judge did not agree that Shadi did not have the necessary knowledge about the death of Arurra. He, therefore, held that the appeal had abated. But he found that this abatement was only partial in respect of Arurra. The legal representatives of Arurra filed the revision petition to challenge the finding in so far as it pertained to the partial abatement of the appeal. Shadi, on the other hand filed the first appeal to challenge the order refusing to set aside the abatement.
4. The first question in both these cases is whether the learned appellate Court was justified in holding that this was not a fit case for setting aside the abatement of the appeal. The learned counsel for the petitioner in the revision petition argued that the application for setting aside the abatement was badly barred by time since it was filed on the 13th July, 1970, even if it is assumed that Shadi had come to know about the death only in October, 1969. I have gone through the record and I find that in the application filed on the 16th October, 1969, also the main ground of delay was given by Shadi which means that he was cognizant of the fact that the appeal had abated and the application filed by him was beyond time. But even if that application be treated to be an application not only for bringing the legal representatives on record but also for setting aside the abatement, it would not be helpful to Shad' appellant in the appeal, for the simple reason that the application having been drafted on the 8th October, 1969, was filed 8 days later. According to law it was the duty of the petitioner under Order XXII, rule 4, C. P. C. To explain each day's delay.
There is no explanation why the application which was drafted on the 8th October, 1969, was not submitted the same day in the Court and why it was filed with a delay of more than a week. This by itself is a sufficient ground for the refusal to set aside the abatement and to allow the two applications filed by Shadi. Hi appeal, therefore, fails.
5. The question in the revision petition is a limited one, whether this abatement was partial. The learned counsel for the petitioner argued on the basis of Shah Muhammad v, Muhammad Bakhsh (I), Alam Khan v. Mastan Shah (2) and Ghulam Haider v. Raj Bhari (3) that where the decree is indivisible and possession of joint property is given to the party, the abatement shall be total. It is not necessary to deal with the other cases since the criteria for judging whether the abatement should be held to be partial or total are laid down in specific terms by their Lordships of the Supreme Court in Shah Muhammad v. Muhammad Bakhsh. In that case the appellants were jointly occupying a portion of the premises. There was no case made out either in the plaint or in the written-statement of separate occupation of separate parts of the premises. In these circumstances, it was held that the Courts below were right in taking the view that the decree was indivisible and each one of the appellants was= a necessary party to the appeal and in the absence of any one of them the decree could not be varied or altered.
(1) PLD 1972 SC 321
(2) PLD 1969 Pesh. 234
(3) PLD 1973 Lah. 372 ' The main criteria were two that the occupation of the premises was joint and that each of the appellants was the necessary party to the appeal. In the present case, it is clear from the record that there was a separate mortgage deed in favour of Arurra deceased. It is also admitted in the plaint that each mortgagee had raised his separate house over the portions mortgaged. In these circumstances, it cannot be held that the decree was at all indivisible. In fact, it was open to Arurra to file a separate suit in regard to the portion of the property mortgaged to him without impleading the other plaintiffs as parties. Similarly, the other plaintiffs could also file separate suits without impleading Arurra. Arurra, in this view, was not, therefore, a necessary party at least to the suit. I agree with the finding of the learned Additional District Judge that in this case the appeal abated in regard to the property of Arurra only. The other revision petition is also without force.
6. The revision petition as well as the appeal are dismissed. I, however, leave the parties to bear their own costs.