LAWS(MPH)-1993-1-48

SHANTILAL Vs. HARINARAYAN

Decided On January 22, 1993
SHANTILAL Appellant
V/S
HARINARAYAN Respondents

JUDGEMENT

(1.) PLAINTIFF has come up in Second Appeal feeling aggrieved by the judgment and decree of the lower appellate Court, partially modifying the decree of the trial Court, and in addition, directing the plaintiff to pay an amount of Rs. 250/ - by way of compensation u/s 95 of the C.P.C. for obtaining an under for attachment before judgment un insufficient grounds. This Court admitted the appeal for hearing parties on the following two substantial questions of law : - -

(2.) ONE of the co -defendants namely Keshrimal who was one of the co -appellants, before the lower Appellate Court, had expired. No application was moved by the legal Representatives seeking substitution in place of the deceased appellant thereat that the decree being joint and indivisible the appeal before the lower appellate Court had abated in its entirity and should have been dismissed as not maintainable submitted the learned counsel. The contention though attractive, is devoid of merit. Firstly, Dhanpal admittedly son of late Keshrimal, was already on record. His presence would obstruct the abatement. Secondly, there is nothing on record to suggest that late Keshrimal was survived by any more Legal Representatives other than the son Dhanpal, already on record. In any case, the theory of substantial representation would apply. The contention that there had been total abatement of the appeal, in the Court below, is, therefore rejected. Question No. 2 : -