BHIKA RAM Vs. BHAGAT RAM

JUDGEMENT

(1.) This Regular Second Appeal has been preferred by the appellant -defendant (hereinafter referred to as the defendant) against the judgment and decree dated 3.9.1999 passed by the learned District Judge, Hamirpur whereby the appeal of the defendant against the judgment and decree dated 7.10.1991 passed by learned Sub Judge, 1st Class (II), Hamirpur thereby decreeing the suit of the respondents, has been dismissed.

(2.) At the time of hearing of CMP (M) No. 651 of 2000, it was found that two of the respondents, namely, Durgi Devi and Jogi died during the pendency of the first appeal before the lower appellate Court but no steps were taken to bring their legal representatives on record. Thus, the question about the effect of their death and non -bringing of their legal representatives on record in the lower appellate Court arose and this Court declined to give findings on the question and, therefore, against this situation the appeal itself was heard with the consent of the parties.

(3.) It is not disputed that two of the aforesaid respondents had died during the pendency of the first apeal before the lower appellate Court and no steps whatsoever were taken before that Court to bring on record their Legal Representatives.. Thus, the questions involved are whether the first appeal had abated or whether Legal Representatives of the deceased are to be brought on record to continue the lis between the parties or not ? The settled position in law as laid down by this Court is that the questions whether the appeal before the appellate Court had abated, if so, the effect and extent of the abatement, whether the abatement should be set aside or not and whether the Legal Representatives of the deceased may be allowed by the Court in which the suit/appeal was pending at the time of the death of the party. (See Karam Chand and others v. BakshiRam and others, HLJ 2001 HP 787 : 2002(1) Cur.L.J. (H.P.) 325, Sher Singh and others v. Raghu Ram, 1981 Shim.L.C. 25, Tulsi Ram and others v. Smt. Krishni 6evi and others, 2000(2) Shim.L.C. 172 : 2000(2) Cur.L.J. (HP.) 260 and Pushpa Devi v. Purshotam Singh and others, CMPs (M) No. 882 and 883 of 2004 and RSA No. 296 of 2003.