MURARI LAL Vs. SMT. GURDEI AND OTHERS

JUDGEMENT

(1.) Srimati Gurdei, plaintiff respondent No. 1 filed the suit for ejectment and arrears of rent in respect of a shop situated in Mohalla Mahadevan Tola, Fatehpur, against Mohan Lal. The suit was decreed by the learned Munsif on 12 -9 -69. Mohan Lal died on 4th October, 1969, leaving behind his sons Murari Lal and Behari Das, Radha Pyari daughter and his widow Smt. Sukhrana Devi as his legal representatives. Mohan Lal and Smt. Sukhrana Devi filed an appeal against the judgment and decree of the learned Munsif impleading Behari Das and Smt. Radha Pyari as proforma -respondents. An application was also given by the appellants Murari Lal and Smt. Sukhrana Devi mentioning therein that Mohan Lal had died on 4 -10 -69 leaving behind the four legal representatives mentioned above and they be made legal representatives of Mohan Lal. An objection was raised by the Munsarim of the District Judge's Court on the Memorandum of appeal. The objection was to the effect that the appellants were not parties to the original decree and proceedings for substitution of Mohan Lal deceased should be taken before the appeal is registered. The learned District Judge interpreted the objection as if the appeal was not maintainable by the legal representatives of Mohan Lal. After hearing the parties, the learned District Judge dismissed the appeal as not maintainable. According to the learned District Judge, the appellants could seek their remedy under S. 151 CPC in the trial Court by getting the names of the heirs of Mohan Lal substituted and till the names of the heirs of Mohan Lal were not substituted in the original decree, the appeal was not maintainable, hence this Second Civil Appeal. U/Ch. X of the Rules of this Court, specific provision has been made for a contingency of this type. U/R. 1 legal representative, assignee or beneficiary has been specifically granted a right of appeal. Along with the Memorandum of Appeal, an application for leave to appeal is also necessary under the aforesaid Rule. Rule 2 provides an appeal against the legal representative of the deceased party. U/R. 2 also an application for leave to make such legal representative a respondent to the appeal is necessary. There is no provision like Ch. X, Rules 1 & 2 in the CPC or General Rules (Civil). The question, therefore, will have to be considered whether an appeal by the legal representative is maintainable or not.

(2.) The leasehold right is a heritable right and if the legal representative who succeeds to the tenancy is bound by the decree, there is no reason why he cannot challenge the decree passed against the predecessor -in -interest provided the appeal is filed within the prescribed time. Learned counsel for the appellant has placed his reliance on Ramanada Sastri v/s. Minatchi Ammal (ILR 3 Mad. 236) which lays down that an appeal can be filed by the legal representative of a deceased party who dies after the decree. Reliance has also been placed on Risal Singh v/s. Chandgi ( : AIR 1939 Lah. 34) which lays down that:

(3.) On principle also, as stated above, the view of the aforesaid cases is sound. S. 151 CPC cannot be invoked by the trial court for substituting the legal representatives after the judgment has been signed and the decree passed. The death of one of the parties after the passing of the decree affects the interest of legal representative and the legal representative, therefore, will be competent to file an appeal against the original decree. The lower appellate Court was, therefore, wrong in dismissing the appellants' appeal as not maintainable. The judgment and decree of the lower appellate Court is, therefore, set aside and the appeal restored to its original number with the direction that the lower appellate Court will dispose of the same in accordance with law. As the appeal was disposed of on the objection of the Munsarim, the costs of this appeal shall be on parties.