DODDAMALLAPPA CHAANNABASAPPA KARI Vs. GANGAPPA SHIDDAPPA GULGANJI

JUDGEMENT

(1.) Before proceeding to deal with the merits of this Second Appeal , it will be necessary to dispose of an application which has been filed by the appellant . This application has been marked I.A. No. 11 and purports to be under S. 153, C.P.C. reads with Order 1 Rule 10 and S. 151, C.P.C. The fact, which have given occasion to this application are as follows: The present appellant was the defendant in the suit before the trial Court. That was a suit which the plaintiff had brought for recovery of possession of the suit schedule property. The plaintiff therein claimed that he had become entitled to the suit schedule property by value of Exhibit 27 which was a sale deed dated 17.4.1946 executed by the defendant. That suit having been dressed by the trial Court, the defendant had preferred an appeal which came up for beating before the second Extra Assistance Judge, Belgaum . That appeal was heard by that learned judge on 4.4.1957 and judgment was pronounced on the same day, dismissing that appeal . It is against that judgment of the Second Extra Assistant Judge, Belgaum, that the present Second Appeal has been filed by the original defendant. In the Second Appeal so filed by the original defendant the original plaintiff had been shown as the respondent . But it appears, that the plaintiff had died on 3.3.1957 which was a even prior to that on which the Second Extra Assistant Judge, Belgaum heard the appeal before him. The appellant in this Second Appeal filed an application alleging that he had not known of the death of the plaintiff and praying for the legal representatives of the original plaintiff being brought on record to this Second Appeal , in place of the original plaintiff who had been shown as the respondent . It was stated in that application filed by the present appellant , that his appeal could have been only against the legal representatives of the decreased original plaintiff and that therefore the legal representatives of the original plaintiff May be considered to have been substituted in place of the original plaintiff who had been shown as the respondent . While this application was pending the present appellant filed a memo stating that he had also filed another application before the lower appellate court seeking to bring the children of the deceased plaintiff on record as the legal representatives or the deceased respondent in the appeal which had been decided by the Second Extra Assistant Judge, Belgaum. Thereupon, the records of the case were sent to the lower appellate Court so that it May dispose of the application before it. The Second Extra Assistant Judge, Belgaum, did no allow that application. The lower appellate court pointed out that the Provision, of Order XXII Rule 6 C.P.C. were not applicable, as it had been alleged that the death of the respondent had taken place even before arguments were heard by that court, it also point out that the stand taken by the defendant was to the effect that the decree of the lower appellate court was a nullity, it dismissed the application which had been made by the defendant appellant . It is therefore, that in the Second Appeal itself which came up for hearing that the present application I.A. No. 11 has been filed.

(2.) The short question for consideration in regard to I.A. No. 11 whether the appellant should be permitted to attend the Appeal Memo bringing on record the legal representatives of the original plaintiff, when the plaintiff was already dead by the time the present appeal was filed. After having hated arguments on this question, it appears to me that on this question, courts have taken two views. One view is that when the respondent was dead by the time the appeal is filed, the appeal must be treated as auction- purchaser nullity, the alternative view is that even though the respondent might have been dead to the time when the appeal was filed. It was still open to the Court by having recourse to S. 158 of the Code of Civil Procedure to permit the legal representatives to be brought on record and to treat as if the appeal had been filed against them. A Bench decision of the Madhya, Bharat High Court reported in Hindusthan General Insurance Society Ltd. V. Kedarnarayan, AIR 1956 Madh-B, 76 has preferred the former view. In the Full Bench division of the Madras High Court reported to Gopalakrishnayya v. Lakshmana Rao, AIR 1925 Mad 1210 the view has been taken that if an appeal is presented against a person who was dead at the date of presentation, the Court May under S. 153, C.P.C. permit the cause title to be amended or May return the Appeal Memorandum for amendment and representation.

(3.) In the Madhya Bharat case, the learned judges of the Madhya Bharat High Court were not indicated to accept the view of the Madras Full Bench in the 1925 Madras case,. They raised on a decision of Chagla C.J. in Bai Patti Vankar v. Madhbhai Galabhai, , AIR1953 Bom 356 , (1953 )55 BOMLR331 , ILR1953 Bom 965 . In that Bombay case, his Lordship Chagla C.J. had to consider the question of the validity of an appeal which had been filed by a pleader, after his client had died. It was held by his Lordship that the appellant being dead, the pleader who preferred the appeal had no authority to prefer any appeal and the Vakalathnama signed in his favour had come to an end. It was in those circumstances that it was held that such an appeal was a nullity. It seems to, me, that the question of the validity of his appeal filed against a respondent who happened to be dead at the name of filing of that appeal , did not directly arise for determination in that case. In the Madras Full Bench decision above referred to, the learned Judges stated as follows: