BRAJ BHUSAN SINGH Vs. NAGENDRA SINGH

JUDGEMENT

(1.) In this application under Section 115 of the Code of Civil Procedure by defendant No. 3, who was appellant in the Court of appeal below, a very anomalous situation has been created by a wrong order passed by the learned Additional Subordinate Judge. The petitioner, on an earlier occasion, having lost in a title suit had come to this Court in Second Appeal No 573 of 1968. One Daroga Mahto was respondent No. 4 in the second appeal. On notices of appeal being issued by this Court, the peon had reported that the said respondent was dead. Thereafter, an application was filed on 4th of March 1970 by the appellant for substitution of the heirs and legal representatives of the said respondent after setting aside abatement. It was stated in the petition for substitution that the said respondent, Daroga Mahto, had died on 9th of April, 1968, that is to say, while the appeal was still pending in the Court of the first instance, before the learned Additional subordinate Judge. In view of two Bench decisions of this Court In Ram Saran Ahir v. Prithvi Nath Singh, (AIR 1952 Pat 267) and Mrs. Gladyas Coutts v. Dharkhan Singh, (AIR 1956 Pat 373), laying down that where during the pendency of first appeal, one of the respondents dies and the case cannot proceed by reason of the death of one of the parties, the whole appeal abates inasmuch as the decree passed in such an appeal would be a decree against a dead person in the absence of his legal representatives and would be a nullity, and that the application for substitution of the heirs of the deceased respondent made in second appeal must be dealt with by the Court in which abatement has occurred; this Court following the procedure indicated in the above decisions, observed that there was no option fpr this Court but to direct that the application for substitution after setting aside abatement in respect of the said respondent No. 4 must be dealt with by the lower appellate Court. On this view, the decree of the lower appellate Court was set aside on the ground that it was passed in respect of a dead person, and the appeal was remanded to the Court below "so that it might deal with the application for setting aside abatement and substitution of the heirs of respondent No. 4". The second appeal was accordingly allowed. In the second appeal, when the appellant had stated the date of death of the said respondent as 9th April, 1968, the said fact was not controverted, and, therefore, this Court proceeded "on the footing that respondent No. 4, one of the principle defendants in the suit, had died during the pendency of the appeal in the lower appellate Court."

(2.) When the abatement matter was taken up by the Court below after remand, one of the pleas that was taken on behalf of the respondents in that Court was that Daroga Mahto had in fact died on 31-10-1968 in the Patna Medical College Hospital and not on 9-4-1968. In other words, according to this contention, respondent Daroga Mahto bad died when the second appeal was pending in this Court. The Court of appeal below formulated two points, one of them being - "Has the suit abated during the 1st appellate stage ?" -- and on permitting the parties to adduce evidence on this question, it recorded a finding of fact that Daroga Mahto had actually died on 31-10-1968 at Patna, while the case was pending in the High Court; and, after having recorded this finding, it further held that the title appeal had not abated at the first appellate stage and then posted the appeal itself for hearing. It is this order which is under challenge before me.

(3.) Mr. Dabendra Narain Sinha, appearing on behalf of the petitioner, rightly contended that the learned Additional Subordinate Judge has landed himself into a serious error to think that while considering the question of substitution after setting aside abatement, if any, it was still open to him to examine, the correctness of the date of death of the respondent.