LAWS(PAT)-1954-1-14

LAL BEHARI GORAIN Vs. ISHWAR GORAIN

Decided On January 20, 1954
LAL BEHARI GORAIN Appellant
V/S
ISHWAR GORAIN Respondents

JUDGEMENT

(1.) This is an application for substitution of the legal representatives in place of the deceased appellant 4 who is said to have died on 15/8/1953. The application for substitution was filed in this Court on 7/12/1953. It was contended on behalf of the petitioners that there had been a preliminary decree In a partition suit against which an appeal had been filed in this Court which was numbered as First Appeal No. 383 of 1947. During the pendency of the appeal appellant 4, Awadhesh Gorain, died on 15/8/1953, and the present substitution was necessary to enable the appellants to prosecute the aforesaid first appeal. Mr. Prasad contended that the provisions of Rules 3 and 4 of Order 22, Civil P. C. had no application; on the contrary, it was Rule 10 of the said Order which applied. He relied upon two decisions of this Court - 'Babuie Shanti - Devi v Khodai Prasad Singh', 1942 Pat 340 (AIR V 29) (A), and - 'Raghunandan Sahu v. Badri Pandey', 1945 Pat 380 (AIR V 32) (B). He urged that in view of this the question of abatement did not arise.

(2.) Mr. Gaurishanker Prasad, on the other hand, has contended that Rule 10 of Order 22 has no applica tion and the application for substitution of the legal representatives in the place of the deceased appellant 4 not having been made within the period of limitation it must be held that the appeal so far as appellant 4 at any rate was concerned has abated, if not the whole appeal. In our opinion in view of what has been stated in the two Patnal cases there can be no question that Rule 10 of Order 22 applies and not Rules 3 and 4. It will be noticed that in Rules 3 and 4 the question of substitution arises on the death of a plaintiff or defendant when the right to sue sur-vies. Where a preliminary decree has been made the rights between the parties have been determined and the question of the right to sue surviving does not arise.

(3.) Consequently under Rule 10 which speaks of "In other cases" the Court can permit the appeal to be continued by the person upon whom the interest of the deceased appellant has devolved. In these circumstances the application is allowed and the persons mentioned in the petition as the legal representatives of the deceased appellant are substituted in his place. There will be no order for costs.