NATHMAL KHANDELIA Vs. JANKI DEVI

JUDGEMENT

(1.) This second appeal is at the instance of the plaintiff against a judgment of reversal. The plaintiff's suit was decreed by the trial court. Defendant No. 1 was the sole appellant who preferred an appeal and the judgment and decree of the trial court were reversed by the lower appellate court. As against that judgment plaintiff No. 1 has preferred this second appeal.

(2.) As this case will be disposed of on a very short point raised by the learned counsel for the appellant, Mr. S. C. Ghose. I need not state the respective cases of the parties. Suffice it to say that the suit instituted by the plaintiff was to set aside a decree said to have been obtained by playing fraud on the court of Munsif, Lucknow. The said suit at Lucknow was for realisation of rent of a cinema premise at Katihar. The case of defendant No. 1. on the other hand was that the ex parte decree passed by the Lucknow court was in accordance with law.

(3.) Mr. Ghose. learned counsel for the appellant, has filed an additional ground today wherein he has taken the point that defendant No. 1, the sole appellant in the court of appeal below, died on 14th Nov. 1970, but the learned court of appeal below, without there being any substitution of the heirs of the sole appellant, heard the arguments sometime between 27th Nov. 1970, and the judgment was delivered on 7th Dec. 1970, in favour of the appellant, a dead person. In short, what he contends is that on the day the case was heard in the court of appeal below, the appeal was wholly incompetent because of the death of the appellant. He, therefore, submits that the judgment and decree of the appellate court, which are against his client, should be set aside and the matter be dropped. In view of this point I refrain from going into other questions raised by him since I find that the case can be disposed of on the aforesaid question alone.