GLADYS COUTTS Vs. DHARKHAN SINGH

JUDGEMENT

(1.) The short facts relevant for the purposes of the point raised in this appeal are the following. The appellant as the plaintiff brought a suit for a declaration that 7 bighas 19 kathas 19 dhurs of land situate in village Parsi Pakri formed part of her mukarrari tenure and for confirmation of possession. It appears that the plaintiff appellant owns proprietary interest in tauzi No. 9351, in which the tenure is held, to the extent of 13 annas and odd. The remaining 2 annas and odd were owned by the defendants. On 11-8-1947, the learned Subordinate Judge who dealt with the suit in the first instance dismissed the suit. An appeal was than preferred to the district Court which was numbered Title Appeal 566 of 1947. Notices of the appeal were served on the respondents, including one Gudar Singh who was defendant 14 in the Court of first instance. It is stated that a notice of the appeal was served on Gudar Singh also, and Gudar appeared in the appeal. On 15-6-1948, Gudar died, but his heirs were not brought into the record; because none of the parties brought the fact of the death of Gudar to the notice of the court. On 20-9-1948, the appeal was heard in the absence of the heirs of Gudar, and on 21-9-1848, the appeal was dismissed. On 23-12-1948, the present appellant filed the second appeal and Gudar Singh was added as respondent 13, in ignorance of the fact that Gudar had died much earlier, on 15-6-1948. On 20-1-1949, the second appeal was admitted and on 23-4-1949, the report of the peon, dated 31-3-1949, to the effect that respondent 13, Gudar, was dead, was put up before the learned Registrar. Then, on 25-4-1949, the appellant filed an application for setting aside abatement consequent on the death of Gudar, and substituting the heirs of Gudar Singh. The question which now has arisen is whether this application for setting aside abatement and substituting the heirs of Gudar Singh should be dealt with by this Court in this second appeal or the decree of the court of appeal below should be set aside on the ground that it was passed in respect of a dead person and the appeal should be remanded to the court of appeal below in order to deal with the application for setting aside abatement and substituting the heirs of Gudar Singh.

(2.) Mr. Prem Lall, appearing for the appellant, has drawn our attention to two decisions of this Court in which in similar circumstances the decree was set aside and the appeal remanded to the court of appeal below for dealing with the application for setting aside abatement and substituting the heirs of the deceased respondent. I may state at the very outset that in the application filed by the appellant it has been stated that she did not know of the death of Gudar Singh on any date earlier than the date on which the peon's report dated 31-3-1949, was brought to her notice. Learned Counsel for the appellant has relied on the decision in Mir Wajid Ali v. Fagoo Mandal, 1938 Pat 125 (AIR V 25) (A) where it was held that when the appellant had already succeeded in serving the notice of the appeal on the respondent, he had done all that was expected of him to do in connection with the appeal; he was not thereafter bound to enquire from day to day as to the state of the health of the respondent or whether the respondent is dead or alive. The decisions on which Mr. Prem Lall has relied are these. The first is the unreported decision of this Court in the case of Hanuman Bhagat v. Ramdeo Narain Jha, S.A. No. 952 of 1944, D/-17-9-1947 (Pat) (B), in which in almost identical circumstances the following order was passed by a Bench of this Court:

(3.) Mr. Prem Lall contends that the same course should be followed in the present case as well. Mr. XL N. Sinha, appearing on behalf of the re'spondents, has contended before us that the order passed in Second Appeal No. 952 of 1944 (Pat) (B) should not be taken as an authority for the view canvassed for by Mr. Prem Lall, because the order does not discuss the question at issue and gives no reasons for the view taken. As to the decision in 1952 Pat 267 (AIR V 39) (C), Mr. U.N. Sinha has sought to distinguish it on the ground that in that case the decree that was passed by the court of appeal below was a decree against a dead person and not in favour of a dead person. Therefore, the argument of Mr. U.S. Sinha is that in a case where a decree nas been passed in favour of a dead person, the other side whose appeal or case has once been heard on merits is not entitled to have the case re-heard; secondly, Mr. U.N. Sinha has contended that the decree passed by the court of appeal below was not a nullity and cannot be set aside by this Court; according to Mr. Sinha, the proper procedure to be followed in such a case is for the appellant here to move an application for setting aside the abatement and substituting the heirs of Gudar Singh in the court of appeal below, and the court of appeal below can set aside the decree passed by it in the exercise of its inherent jurisdiction if it is satisfied that the application for setting aside the abatement should be allowed. In support of these contentions Mr. Sinha has referred us to several decisions, I now proceed to consider them.