SPECIAL LAND ACQUISITION OFFICER Vs. SANJEEVAPPA

JUDGEMENT

(1.) This appeal is instituted by the Special Land Acquisition Officer, Davanagere and is directed against the judgment and decree, dated 30.9.1975 passed by the District Judge, Chitradurga in M.A. No. 63 of 1975 on his file allowing the appeal and modifying the award and decree dated 23.11.1974 passed by the Civil Judge, Chitradurga in L.A.C. No. 1552 of 1972 on his file awarding enhanced compensation,.

(2.) After filing the appeal the Special Land Acquisition Officer filed I.A.No. I before this Court stating that the respondent claimant Sanjeevappa died on 15.7.1975 even before the judgment of the; District Judge was pronounced and therefore he prays by the LA. that the legal heirs of the said Sanjeevappa should be brought on record.

(3.) It is well settled position of law that where, pending a suit or appeal a party thereto dies, but in ignorance, there of a dqcree is passed and an appeal is preferred ' against it and the question of substitution of heirs or setting aside the abatement is raised in aupeal, the court which is competent to deal with it is the court in which the abatement took place and not the court of appeal. If any authority is reeded for this proposition, it is to be found in the case of Kameswar Pandey v. Deolal Bag AIR 1964 Pat. 247.. Therein it is laid down tha,t where an, application for setting aside abatement and substituting the heirs off the dead respondent is made in second appeal, such application must be dealt with by the court in which abatement occurred and the) proper procedure to follow for the second appellate Court is to set aside the decree of the court of appeal below on the ground that it was passed in respect of a, dead person and to remand the appeal to the court of appeal below in order to deal with the application for setting aside abatement and substituting the heirs of the dead respondent.