AWADH BEHARI SINGH Vs. MUNNI SINGH

JUDGEMENT

(1.) UMESHWAR Pandey, J. This ap peal under Order XLIII, Rule 1 (k) has been filed against the order dated 97-1986 passed by the Additional District Judge, Ballia whereby the appellant Awadh Behari Singh's petition under Order XXII, Rule 9 C. RC. moved for set ting aside the abatement and to record the substitution of the deceased appel lant was rejected.

(2.) THE brief facts are. that the respondents Kamta Singh and Munni Singh filed a suit against the two brothers Ram Avadh Singh (deceased) and the present appellant Avadh Behari Singh in the trial Court. THE suit was decreed vide judgment dated 11-7-1979. THEreafter out of two defendants only Ram Avadh Singh filed an appeal before the District Judge and his brother Awadh Behari Singh was made a respondent in it. While the appeal (CA No. 250/1979) was pending, the appel lant Ram Avadh Singh died on 30-7-1983 leaving the present appellant his brother Awadh Behari Singh as the sole heir. THE appellant Awadh Behari Singh moved the Lower Appellate Court vide application dated 23-1-1984 for his sub stitution at the place of his deceased brother. That application was contested and objections were filed from the side of other respondents. THE learned Lower Appellate Court after having heard the parties and on placing reliance upon a decision of Division Bench of this Court in case of Thakur v. Mst. Maida Kaur and Ors. , reported in AIR 1954 Aild. 305, found that the appellant-Awadh Behari Singh could not be legal ly transposed as an appellant and ac cordingly his prayer for substitution after setting aside the abatement of ap peal, was refused by the impugned order.

(3.) THE Apex Court in observation has thus, propounded that where one of the legal representatives of a deceased is already on record in some other capacity then also the said appeal or other proceeding as the case may be, shall not abate on the death of such party. THE question of limitation will not arise in such cases. THE learned Single Judge placing reliance upon the aforesaid principle of law laid down by the Apex Court, has also expressed his view in the same manner in para-5 of the judgment in Munney Khan's (supra) case, which is reproduced below: "in the instant case, as seen above, there was no dispute that one of the legal rep resentatives of Smt. Jamuna Devi who was also a co-piaintiff in the suit namely Kalloo Singh respondent No. 1 was already on record and as such the appeal could not abate. THEre is no limitation prescribed for impleading we remaining legal repre sentatives on record and this could be done any time before the disposal of the appeal in order to keep the record straight That, in the instant case was done and the lower appel late Court should accordingly have impleaded Smt. Basanti Devi also in the appeal and disposed it of on merits".