BULI JENA Vs. BISNHU CH SUTAR

JUDGEMENT

(1.) THIS is an application under Order 1, Rule 10, read with Section 151 of the Code of Civil Procedure. This application has been filed by the legal representatives of deceased appellant No. 2. During the pendency of the second appeal, appellant No. 2 expired on 20.10.1996. A memo supported by affidavit was filed by counsel for the respondent indicating such death of appellant No. 2. Thereafter the present application has been filed.

(2.) COUNTER has been filed on behalf of the respondent stating that an application under Order 22, Rule 3, CPC, should have been filed and since the period for filing petition for substitution was over, petition for setting aside abatement should have been also filed. It is, therefore, contended that the application under Order 1, Rule 10, read with Section 151, CPC is not maintainable.

(3.) THERE is no doubt that in view of the decision reported in AIR 1971 Supreme Court, 742, when some of the legal representatives of a deceased appellant or respondent are on record in some other capacity, the appeal may not abate even though the other legal representatives are not brought on record. The decision of the Supreme Court has been followed in the decision of this Court reported in 63 (1987) CLT, 232 (Ghanashyam Agarwalla and Anr. v. Jagabandhu Mahanta and Ors.). In the decision reported in AIR 1988 Supreme Court. 2121 (Collector of 24 Parganas and Ors. v. Lalith Mohan Mullick and Ors.), it has been held that where estate of the deceased is sufficiently represented, it cannot be said that the appeal abates on the death of a party. The learned counsel for the appellants is, therefore, correct in stating that non -impletion of the other legal representatives of deceased appellant No. 2 within the time prescribed did not have the effect of abatement of the appeal. Even then, to make the record complete, it is the duty of the appellants to bring all the legal representatives on record and since one of the appellants had died, it was the duty of the other appellants to do so. Such view gains ground from the observation made by the Supreme Court in paragraph 12 of the decision reported in AIR 1965 Supreme Court, 1049 (Daya Ram and Ors. v. Shyam Sundari and Ors.).