BEHARILAL Vs. RAMDAYAL

JUDGEMENT

(1.) THIS second appeal which came up for hearing before a Division Bench of the Board of Revenue had been decided or. 26. 10. 59. One of the contentions raised by the learned counsel for the appellant before the learned Bench was that Thakarsi the father of the four appellants had died during the pendency of the trial of the suit and no formal order of the court about making the appellants as legal representatives of the said deceased Thakarsi was made and in consequence whereof a decree was passed against a dead person which was a nullity in the eye of law. The learned Bench examined this contention and held that "from the record it was clear that Thakaria had died during the pendency of the suit, that the appellants being the sons of the deceased Thakaria appeared in the trial court and defended themselves through a counsel. Thus in effect the appellants were brought on record in place of the deceased Thakaria. There was merely an omission to record a formal order regarding this substitution which at the most can amount to an irregularity. It did not affect the progress of a trial nor prejudiced the case of the appellants who contested the suit as effectively and thoroughly as if they had been formally brought on record. ". Thereafter the learned Bench thought that while making the said! observation and deciding the appeal it did not take into consideration the legal provision contained in O. 22 R. 4 C. P. C. and also did not discuss the case law on the subject in the said judgment. Accordingly the decision dated 26. 10. 59 was suo motu reviewed by the learned Bench and the appeal was fixed up for hearing on a date of which due notices were given to the parties and their counsels.

(2.) BOTH the learned counsel argued the case at some length. The contention of Shri Mathur counsel for the appellants is that an application having already been made on 23. 1. 58 by the plaintiff-respondent intimating the court about the death of the defendant Thakaria on 8-12-57 and also having requested to implead the present appellants as his legal representatives they being the sons of the said deceased, it was the duty of the court to have made a formal order about the substitution of the names of the appellants in place of the deceased defendant and that an omission to have done so was fatal to the proceedings and the decree passed against the deceased Thakaria was a nullity. It was pointed out that even if the appellants had engaged a counsel and appeared during the subsequent stage of the proceedings by examining and arguing the case, the formal and material defect in the procedure namely the omission to bring the legal representatives on record could not be cured in the exercise of inherent powers either under Secs. 151 or 153 C. P. C. A number of authorities on this point were cited which we will presently discuss. The contention of the learned counsel for the respondent was that such a defect even if it resulted in a decree against a dead person was not fatal to the case and since no prejudice was caused to the parties specially the appellants, this court was fully competent to rectify the error and dispose of the appeal as if it was against a decree passed against the appellants as legal representatives of the deceased. He also relied on several rulings of the various High Courts which will also be examined in the following paragraphs.