LUBHAN GOPAL NIKHARE Vs. SANDHYA

JUDGEMENT

(1.) This is an application filed by the father of the appellant seeking permission to prosecute the present appeal and for bringing him on record in place of his son- original appellant, who expired during the pendency of this appeal.

(2.) This application has been vehemently opposed by the respondent/wife and reply has also been filed. Placing reliance on the decision of supreme Court in the case of Smt. Yallawwa v. Smt. Shuntavva, 1997 AIR(SC) 35 learned counsel for the respondent/wife argued that the appellant/husband Lubhan having expired during the pendency of present appeal and the subject matter of the appeal being the proceedings for divorce between husband and wife on the ground of desertion and cruelty, the cause was purely a personal cause of action and, therefore, the same would die with the husband. He then argued that the respondent/ wife has one child and at any rate on merits of the matter there is no substance in the present appeal as the decree of dismissal of divorce petition is well justified. According to him, the person sought to be substituted in place of original appellant is his father, who is not a class I heir but the child is, and therefore, no better rights can be read in favour of father as against the son of original appellant and respondent. Therefore, the cause of action being a personal cause of action, this appeal will have to be dismissed as having been abated. In support of his contentions, he relied on para 10 of the judgment of supreme court, cited supra.

(3.) Per contra, Mr.Mardikar opposing the objection to his application for bringing the father of original appellant on record, submitted that the aforesaid supreme court decision is in fact a decision in favour of the applicant. He submits that in the said decision though the facts were similar the decree that was passed was an ex parte decree. The said ex parte decree was set aside by the High Court and the proceedings of the petition for divorce were restored before the trial Court. Once the effect of ex parte decree was wiped out by virtue of the decision of High Court by setting aside ex parte decree, there was no decree standing in the way of either of the parties. Therefore, at the stage after remand the proceedings due to the death of one party assumed character of purely personal cause of action, and therefore, in the facts of the said decision of Supreme Court it was held that the proceedings of divorce could not be continued in the trial Court. However, he argued that sofar as the instant appeal proceedings are concerned, the Supreme Court in categorical terms has held that prosecution of appeal by legal heir would be maintainable.