YOGESHWAR Vs. LAXMINARAYAN AGRAWAL

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree passed by the Additional Judge to the Court of District Judge, Raigarh dated 23-3-83 in C. S. No. 7-B/82, one Bimadhar preferred first appeal No. 75/83 in this Court. Bimadhar, the sole appellant, died during the pendency of the appeal, but no application was made by his L. Rs. for substitution within the period prescribed for the purpose. A belated application was. however, made by the L. Rs. of Bimadhar who are the appellant before us in the present L. P. A. for being substituted in place of Bimadhar and for setting aside the abatement. This application was rejected by a learned single Judge of this Court by his order dated 16-7-86 on the ground that no case for condonaton of delay had been made out. After holding that the appeal had abated, the learned single Judge proceeded to pass an order directing the appeal to be dismissed as such. The present appeal has been preferred against this order dated 16-7-86.

(2.) AN objection has been raised by office that ad valorem Court-fee ought to have been paid by the appellants on the memorandum of appeal and the same not having been done and only fixed court-fee having been paid, there was deficiency in court-fees. This objection has been contested by counsel for the appellants. It is this matter which has come up for consideration before us.

(3.) IT has been urged by counsel for the appellants that once Bimadhar, the sole appellant, died and no application was made for substituting his L. Rs. within the prescribed period of limitation, the appeal automatically abated and the application subsequently made for setting aside the abatement having been dismissed, there was indeed no appeal which could be dismissed by the order appealed against. According to him, therefore, notwithstanding the fact that the word 'dismissed' has been used with reference to the appeal by the learned single Judge, the order dismissing the appeal in the circumstances of the instant case, is to be treated as non est and it cannot be said that the learned single Judge passed any decree and the appellants were required to pay ad valorem court-fees on the basis that the appeal was against a decree.