DHARAM SINGH Vs. GURBAX SINGH

JUDGEMENT

(1.) APPELLANTS , who were defendants in the trial Court, are in second appeal before this Court. They are aggrieved by the judgment and decree dated 11.6.2012 passed by learned Additional District Judge, Una, in Civil Appeal No. 38/2010, whereby the appeal has been dismissed and the judgment and decree dated 29.3.2010, passed by learned Civil Judge (Junior Division), Court No. II, Amb, in Civil Suit No. 196/96 affirmed.

(2.) ONE of the defendants -appellants Shri Dalip Singh passed away on 30.10.2011 during the pendency of the appeal in the lower Appellate Court. No application for substitution of his legal representatives or setting aside the abatement, if any, consequent upon the death of said Dalip Singh was filed in the lower Appellate Court. It is not decipherable from the record as to whether he was proceeded against ex -parte in the lower Appellate Court or contested the appeal. The fact, however, remains that his predecessor -in -interest deceased Khushal Devi, defendant No. 1 in the main suit, had filed written statement and contested the suit. Since no steps for substitution of the legal representatives of deceased defendant Dalip Singh have been taken nor an application filed for setting aside the abatement, if any, of the appeal consequent upon his death in the lower Appellate Court, therefore, the applications filed in this Court for the purpose cannot be entertained, because as per the settled legal principles, the question of abatement of appeal on the death of a party can only be considered and decided by the Court where the lis at the time of death of such party was pending disposal.

(3.) A co -ordinate Bench of this Court, in Karam Chand and others v. Bakshi Ram and others, : 2002 (1) Shim. L.C. 9 has again held as under: